257 F. 450 | D. Nev. | 1919
(after stating the facts as above). The city of Reno contends that Myron Lake’s pre-emption claim attached to the land in controversy before the right of way grant was made, and that Charles Crocker, having acquired Lake’s title, sold a large number of town lots in Reno during the years immediately following 1866, by reference to an official map or maps then on file in the offices of the county clerk or county recorder of Washoe county; that Crocker caused these maps to be made and filed; on them there is an open space, marked “Plaza,” extending along the north side of the railroad company’s tracks, freight platforms, sheds, and warehouses; and that this constituted a valid common-law dedication.
If this contention is meritorious, the Plaza, since the date of the act, could not in any manner, or for any kind of use, public or private, be alienated, dedicated, or otherwise disposed of without the consent and
“Sec. 2. And be it further enacted, that the right of way through the public lands be, and the same is hereby, granted to said company for the construction of said railroad and telegraph line; * * ® said right of way is granted to said railroad to the extent of two hundred feet in width on each side of said railroad where it may pass over the public lands, including all necessary grounds for stations, buildings, workshops and depots, machine shops, switches, side tracks, turntables, and water stations. The United States shall extinguish as rapidly as may be the Indian titles to all lands falling under the operation of this act and required in said right of way and grants hereinafter made.”
The provisions of section 3 of the act, which will be considered in construing section 2, are as "follows:
“Sec. 3. And be it further enacted, that there be, and is hereby, granted to the said company, for the purpose of aiding in the construction of said railroad and telegraph line, and to secure the safe and speedy transportation of the mails, troops, munitions of war, and public stores thereon, every alternate section of public land, designated by odd numbers, to the amount of five alternate sections per mile on each side of said railroad, on the line thereof, and within the limits of ten miles on each side of said road, not sold, reserved, or otherwise disposed of by the United States, and to which a pre-emption or homestead claim may not have attached, at the time the line of. said road is definitely fixed-”
Congress thus conclusively determined that a right of way 400 feet in width was essential to the performance of the public service and duties assumed by the railroad company. Northern Pac. Ry. Co. v. Townsend, 190 U. S. 267, 23 Sup. Ct. 671, 47 L. Ed. 1044.
“The right of way for the whole distance of the proposed route was a very important part of the aid given. If the company could be compelled to purchase its way over &ny section that might be occupied in advance of its location, very serious obstacles would be often imposed to the progress of the road. For any loss of lands by settlement or reservation, other lands are given; but for the loss of the right of way by these means no compensation is provided, nor could any be given by the substitution of another route. The uncertainty as to the ultimate location of the line of the road is recognized throughout the act, and whex'e any qualification is intended in the opex-ation of ihe grant of lands, froxu this circumstance, it is designated. I-Iad a similar qualification upon the absolute grant of the right of way been intended, it can hardly be doubted that it would have been expressed. The fact that none is expressed is conclusive that .none exists.” Railroad Co. v. Baldwin, 103 U. S. 426, 429 (26 L. Ed. 578).
“to construct a railroad * * * from the Pacific Coast, at or near San Francisco, or the navigable waters of the Sacramento river, to the eastern boundary of California.”
The next section (10) contains the following provision:
“The Central Pacific Railroad Company of California, after completing its road across said state, is authorized to continue tho construction of said railroad * * * through the territories of the United States to the Missouri river, * * * on the terms and conditions provided in this act in relation to the said Union Pacific Railroad Company, until said roads shall meet and connect.”
In the amendatory act of July 2, 1864 (13 Stat. 356, c. 216), section 16 provides that:
“Should the Central. Pacific Railroad Company of California complete their fine to the eastern line of the state of California, before the line of the Union Pacific Railroad Company shall have been extended westward so as to meet the line of said first-named company, said first-named company may extend their line of road eastward one hundred and fifty miles on the established route, so as to meet and connect with the line of the Union Pacific road, complying in all respects with the provisions and restrictions of this act as (o said Union Pacific road.”
Section 2 of the act of July 3, 1866 (14 Stat. 79, c. 159), contains the following provision:
“The Union Pacific Railroad Company, with the consent and approval of the Secretary of the Interior, are hereby authorized to locate, construct, and continue their road from Omaha, in Nebraska Territory, westward, according to the best and most practicable route, and without reference to tho initial point on the one hundredth meridian of west longitude, as now provided by law, in a continuous completed line, until they shall meet and connect with the Central Pacific Railroad Company of California; and the Cení ral Pacific Railroad Company of California, with the consent and approval of the Secretary of the Interior, are hereby authorized to locate, construct, and continue their road eastward, in a continuous completed line, until they shall meet, and connect with the Union Pacific Railroad.”'
Defendant contends that the changes wrought by the act of 1866 were such that the Central Pacific Company’s title to the Plaza cannot antedate that act. The significance oí this is apparent when reference is made to the date of Rake’s patent, August 10, 1865. Supporting this contention, defendant argues:
(1) That the company may have failed to file its map within two years after July 1, 1862, and thus having failed to comply with the conditions of the grant of that date, Congress, acting within its undoubted power, extended further opportunity by the act of 1866, and again opened to the company the route east of California.
(2) If the right to continue construction was derived from the act of 1862, there was no need of the later act.
“When a new act supersedes the first one before the right of way is located, the route when located can only relate back to the superseding act.”
(4) The act of 1866 speaks in the present tense, thus:
“And be it further enacted * * * the Central Pacific Railroad Company, with the consent and approval of the Secretary of the Interior, are hereby authorized to locate, construct and continue their road eastward.”
The act of 1866 was a new grant of a right of way in different terminology, and under different conditions. In the act of 1862, completion across California was a prerequisite to continuation; in the act of 1866 this condition was dropped, and a new requirement of the consent and approval of the Secretary of the Interior 'was imposed.
The three acts deal with the transcontinental railroad, extending from a designated point on the 100th meridian to a terminus on the Pacific Coast at or near San Francisco or the navigable waters of the Sacramento river. Neither of the amendatory acts contemplated any change in the original route. The act of 1864 authorized the Central
The requirement in the acj: of 1862 that the Central Pacific should complete its road to the Nevada-California line before proceeding eastward was not so much a contractual or statutory obligation as a physical and economic condition, which at that time Congress could no more eliminate than it could eliminate the mountains or the desert..
The obvious design of the statute of 1866 was to remove a restriction on the eastward progress of the Central Pacific Railroad beyond a point 150 miles east of the western boundary of Nevada, which by some indirection or misunderstanding had found a place in the act of 1864. This is fully explained in the Congressional Globe for 1865--66, at pages 3261 and 3422.
If Congress had intended to recall or declare forfeit -the right of way granted July 1, 1862, and to substitute therefor a new grant, not effective until July 3, 1866, and thus subject the company 1o the delay and expense of condemnation proceedings to secure passage over lands which during that interval had been located in advance of the construction of the road, it is highly probable that such a purpose would have been clearly and explicitly stated, and not left to be deduced by uncertain and questionable implications from the slightly varying terminology of the several acts.
1 am unable to discover any justification for such a theory in the circumstance that in the act of 1866 the company was authorized to continue eastward, with the consent and approval of the Secretary of the Interior. 36 Cyc. 1084; Stuart v. Union Pac. R. R. Co., 178 Fed. 753, 763, 103 C. C. A. 89.
Union Pac. Ry. Co. v. Harris et al., 215 U. S. 386, 30 Sup. Ct. 138, 54 L. Ed. 246, on which defendant relies, is not a parallel case, and its authority is much weakenéd by subsequent decisions in Union Pac. R. R. Co. v. City of Greely, 189 Fed. 1, 110 C. C. A 571, and Stuart v. Union Pac. R. R. Co., 178 Fed. 753, 103 C. C. A. 89; Id., 227 U. S. 342, 33 Sup. Ct. 338, 57 L. Ed. 535. In the Harris Case the court had under consideration rights of way granted to the Leavenworth, Pawnee & Western Railroad Company,, the name of which was changed to Union Pacific Railroad Company, Eastern Division, and thereafter to Kansas Pacific Railway Company. In section 9 of the act of 1862 that company was granted a rjght of way from the mouth of the Kansas river to the initial point of the Union Pacific on the 100th meridian in Nebraska. In the act of 1864 (section 12) the company was authorized to construct its road from the mouth of the Kansas
In the Greely Case the lands over which the Union Pacific Railroad Company, Eastern Division, claimed a right of way were situated in Weld county, Colo., and had been settled and entered in June, 1865, under the pre-emption act. The court held that the act of 1866 contained no grant either of lands or right of way; it simply extended the time in-which to file the map showing the general route of the road, and fixed the most westerly point at which the road could connect with the main line of the Union Pacific; hence if the lands in question were unappropriated public lands on July 2, 1864, the company’s right to a -way 400 feet in width over them was undeniable, and all persons acquiring -title to, or rights in, any such lands after that date, took subject to such right of way. •
In Stuart v. Union Pac. R. R. Co., 178 Red. 753, 103 C. C. A. 89, and 227 U. S. 342, 33 Sup. Ct. 338, 57 L. Ed. 535, the land claimed to be subject to a right of way was situated near Denver, Colo.; to it Stuart’s grantor had initiated a pre-emption claim by settlement and filing a declaratory statement June 16, 1866, a little over two weeks before the passage of the act of 1866. The Circuit Court of Appeals for the Eighth Circuit considered that the company’s • right of way could not rest on the act of 1862 alone, because the land was west of the 100th meridian, which by that act was fixed as the western terminus of the road; that the terms of the act of 1866 were “restrictive rather than creative or expansive, and indicative of a purpose to limit or confine an existing option or privilege”; that the right to a way over the land must be referred to section 9 of the act of 1864, and the company’s title thereto must be regarded as effective from the date of that act, which preceded by almost two years the title which Stuart was asserting. This decision went to the Supreme Court of the United States on writ of certiorari, and was there affirmed.
■ ■ Neither the act of 1864 nor the act of 1866, contemplated any change in the route of the Central Pacific Railroad through Reno, or along the Truckee river, or for 150 miles east of the eastern boundary of California. In contrast, the act of 1864 permitted the Union Pacific
“The exception of a particular thing from general words, proves that, in the ojunion of the lawgiver tlio thing excepted would he within the general clause, had the exception not been made.” Brown v. Maryland, 12 Wheat. 438, 6 L. Ed. 678.
Again, in Gibbons v. Ogden, 9 Wheat. 1, 190 (6 L. Ed. 23), Judge Marshall says:
“It is a rule of construction, acknowledged by all, that the exceptions from a power mark its extent; for it would be absurd, as well as useless, to except from a granted power that which was not granted, that which the words of the grant could not comprehend.”
If this rule is applied, lands in the path of the road, to which preemption or homestead claims had attached, might nevertheless be public lauds, and subject to the right of way granted in section 2. If, however, the exceptions were inserted out of an abundance of caution, it would indicate apprehension that the term “public lands,” as used in
In Kindred v. Union Pac. R. R. Co., 168 Fed. 648, 652, 94 C. C. A. 112, a right of way case, the Circuit Court of Appeals for the Eighth Circuit, discussing this statute, said that the application of the exceptions exclusively to the land grant indicated the intention of Congress to give a right of way across all lands without exception, so far as it was within its power to do so. The case was' subsequently taken to the Supreme Court of the United States, where the decision of the Circuit Court of Appeals was affirmed, 225 U. S. 582, 32 Sup. Ct. 780, 56 L. Ed. 1216. It was held that the term “public land” could be construed,' so as to include Indian lands allotted in severalty to the Indians, and that such lands were subject to the right of way granted in section 2. This conclusion was based on the provision in section 2 that the United States should extinguish as rapidly as might be the Indian title to all lands required for the right of way, implying that the Indian lands, as to which Congress properly could grant a right of way, were intended to be included, whether public lands or not. Notwithstanding the act of May 30, 1854, reserving the sixteenth and thirty-sixth sections in each township for school purposes, it was held that those sections in Nebraska were subject to the right of way grant in section 2 of the act of 1862. Union Pac. Ry. Co. v. Karges (C. C.) 169 Fed. 459.
One of the earliest and most instructive discussions of the right of a settler who has come short of securing a vested right in lands not yet offered for sale is presented in the Yosemite Valley Case (Hutchings v. Low). 15 Wall. 77, 21 L. Ed. 82. The facts in that case are these: Hutchings in May, 1864, was living with his family in Yosemite Valley on a tract of unsurveyed land, on which he had buildings, fences, and cultivation. He intended to enter it under the pre-emption act, but in June, 1864, Congress granted the whole valley to the state of California in trust for a public resort. Act June 30, 1864, c. 184, 13 Stat. 325. The Supreme Court of California (41 Cal. 634) and the Supreme Court of the United States both held that Hutchings’ claims
“When an individual, in the prosecution of a right, does everything which the law requires him to do, and he fails to attain his right by misconduct or neglect of a public officer, the law will protect him.”
The response was that the claim of pre-emption can never arise when the law does not provide for the sale of the property. Hutchings was unable to acquire title, because the land had been withdrawn from sale and granted to another. This was due, not to the neglect or misconduct of a public officer, but to the action of Congress. The court drew a distinction between acquisition by the settler of a legal right to lands occupied by him as against the owner, the United States, and acquisition by him óf a legal right as against other parties to be preferred in its purchase, when the United States has determined to sell. As against the government, his rights are to be measured by the acts of Congress, not by what he may or may not do. There must be settlement and entry in the land office to defeat a congressional grant; but prior settlement, residence, and occupation are sufficient to confer a pre-emption right or privilege to purchase, as against other purchasers under the general law, when the land is finally open for sale, provided the privilege is promptly exercised.
The grant in the Hutchings Case was not restricted to the public lands. The words of the congressional grant were:
•‘There shall be and hereby is granted to the state of California the ‘cliff or ‘gorge’ in the granite peak of the Sierra Nevada Mountains, * * * and known ns the Yo Semite Valley, with its branches or spurs, in estimated length fifteen miles, and in average width one mile back from the main edge of the precipice on each sided: the Valley.”
To the same effect see Hutton v. Frisbie, 37 Cal. 475, 491; United States v. Hanson, 167 Fed. 881, 886, 93 C. C. A. 371; Buxton v. Traver, 130 U. S. 232, 9 Sup. Ct. 509, 32 L. Ed. 920.
Unquestionably the grant in section 2 of the act of 1862 was a right of way through public lands only. If Congress intended to give a right of way across all lands, without exception, to the full extent of its power, such an intention could and would have been clearly and aptly expressed. The term “public lands” has been and is habitually employed in our legislation to designate “such lands belonging to the government as are subject to sale or other disposal under general laws.”
Pre-emption claims were not allowed on unsur.veyed public lands generally, or in Nevada, until the passage of the act of June 2, 1862. 12 S-tat. p. 413, c. 95; 12 Stat. p. 410, § 7; St. Paul, Minn. & Man. Ry. Co. v. Donohue, 210 U. S. 21, 28 Sup. Ct. 600, 52 L. Ed. 941. It is therefore questionable, to say the least, whether any pre-emption claim could attach to the land, or whether Lake could initiate any right thereto under the pre-emption law until June 2, 1862, 29 days before Congress granted the right of way.
"has made or shall hereafter make a settlement in person on the public lands” subject to pre-emption, “and who shall inhabit and improve 1he same, ■and who has or shall erect a dwelling 1 hereon, * * * is authorized to enter with the register of the land office for the district in which such land may lie, 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.”
The settler, having settled and improved a tract of land subject to pre-emption, was required—
"within thirty days after the date of such settlement, [to] file with the register of the proper district a written statement, describing the land settled upon and declaring his intention to claim the same under the pre-emption laws.”
Failing to file such a declaration within the time specified, the land was subject to entry by any other purchaser. If the land was unserveyed, the pre-emption claimant was required to file his declaratory statement within three months from the date of the receipt at' the district land office of the approved plat of the township, giving a description of the tract and the time of settlement. Rev. St. §§ 2264, 2265.
It may be conceded that, when such a declaratory statement is filed in the proper land office, it is notice to the world that the land is set apart and is subject to the pre-emptioner’s option to purchase, so long as he complies with the provisions of the law and the regulations of the land office. The tract thus entered is severed from the mass of public land, and so remains until the entry is canceled or forfeited; in that event, the land reverts to the government, and again becomes subject to entry. The rights acquired by a pre-emptioner on unsurveyed land prior to entry in the land office depend on circumstances. If not made for the purpose of establishing and maintaining a home, temporary residence and improvements on the land do not create any
There are numerous decisions of the Supreme Court to the effect that no vested right attaches to a tract until there has been an entry in the local land office. When a settler has filed his declaratory statement, and “performs certain other acts prescribed by law, he acquires for the first time the right of pre-emption to> the land; that is, a right to purchase it in preference to others.” Buxton v. Traver, 130 U. S. 232, 235, 9 Sup. Ct. 509, 510 (32 L. Ed. 920); Northern Pac. R. R. v. Colburn, 164 U. S. 383, 386, 17 Sup. Ct. 98, 41 L. Ed. 479; Lansdale v. Daniels, 100 U. S. 113, 116, 25 L. Ed. 587; Maddox v. Burnham, 156 U. S. 544, 15 Sup. Ct. 448, 39 L. Ed. 527; Kansas Pac. Ry. Co. v. Dunmeyer, 113 U. S. 629, 5 Sup. Ct. 566, 28 L. Ed. 1122; Hastings v. Whitney, 132 U. S. 357, 362, 10 Sup. Ct. 112, 33 L. Ed. 363; Sioux City, etc., Land Co. v. Griffey, 143 U. S. 33, 40, 12 Sup. Ct. 362, 36 L. Ed. 64; Tarpey v. Madsen, 178 U. S. 215, 224, 20 Sup. Ct. 849, 44 L. Ed. 1042. It will be assumed, as defendant contends, that the foregoing rule gives way when the land settled upon is unsurveyed, and a qualified, pre-emptioner, intending at the time to acquire it in good faith from the government under the pre-emption act, performs such acts as will give reasonable and definite notice of the extent and identity of his claim.
In Brown v. Central Pac. R. R. Co., 6 Land Dec. 151, it was held that a right acquired by settlement, in the absence of any claim of record or otherwise, is confined to the limits of the quarter section in which the settlement is made, and that the settlement right existing at
Inasmuch as Lake was unable to file his declaratory statement before March, 1864, and the statute reserved to him the right to do so, it was his duty in the meantime to perform such acts as would put the public upon notice of the extent and identity of his claim. Defendant has failed to show that this was done. The testimony introduced by plaintiffs shows that Lake had no improvements whatever on the northeast quarter of section 11, the quarter in which the Plaza is located, prior to 1865. The testimony offered by plaintiffs to this effect is not in conflict with defendant’s showing in Lake’s declaratory statements. The recital in the declaratory statements that Lake settled on the tract of land claimed in 1861, and that in 1864 when he made his declaratory statements he intended to claim the land as a pre-emption, and the further fact that he had no improvements on the Plaza prior to 1865, may all be true.
There was no finding of fact by the officials of the land department that Lake’s settlement was made in 1861, nor was such a finding required. The first declaratory statement shows that he then settled and improved a tract of land situated in three different quarter sections, but there is no finding that Lake ever settled or improved, or intended to pre-empt, the Plaza, or the quarter section in which it is located, prior to the date of the first declaratory statement; nor is there anything therein, or in the affidavits, to that effect. Furthermore, Lake never declared on lot No. 9 in the S. F. Li of section 11, until August 3, 1864, four months after the approved plat of the township was filed in the local land office. This indicates that, even after the approved plat of the township had been filed in the local land office, Lake was still uncertain as to what land he would include in his pre-emption claim.
The Supreme Court of the United States held that, even if Olney had settled prior to the filing of the map of definite location, that fact alone was insufficient to withdraw the land from the operation of the railroad grant, because there was no proof that his settlement was with intent to acquire title from the United States. The court then argued that both parties should be held to the record. The whole trend of Mr. Justice’s Brewer’s argument was toward the conclusion that the date when the map of definite location was filed with the Commissioner of the General Land Office should mark the inception of the company’s right, and that the date when the settler’s entry was made in the local land office should be regarded as the time when his right attached. That this was his theory is shown by his reply to the objection that such a rule would ignore the privilege given to temporary occupants of the land to make entry within a short time. Furthermore, he limited the application of the rule to controversies similiar to that between Tarpey and Madsen. The case at bar is not such a controversy.
In a controversy, said the court, between two occupants of a tract open to pre-emption and homestead entry, relative rights are not determined by the mere time of filing the respective claims in the land office, but by prior occupancy, which may be established by oral testimony. But in a controversy between a railroad holding under a land grant, and an individual entryman, the question of right, according to decisions of the Supreme Court since 1882, rests, not on the mere matter of occupancy, but on the record. In decisions prior to that date, it
The uncertainty and instability of titles resting on oral testimony led to the adoption of the rule, since unquestioned, that the line of the railroad could only be regarded as definitely fixed when the map of definite location is filed with the Commissioner of the Land Office. This eliminated oral testimony on that point, and also suggested that the rights of the settler in controversy with the railroad company claiming rights under the land grant should hinge on the record; that is, upon his declaration or entry in the local land office.
The objection to plaintiffs’ oral testimony as to Lake’s improvements prior to 1865 is overruled. Objections to the so-called Lake possessory claim are sustained, because Lake’s connection therewith has not been satisfactorily established. Defendant’s testimony fails to show that Lake, prior to or on the 1st day of July, 1862, had made any claim to the Plaza sufficient to deprive it of its status as public land or defeat the right of way grant.
Let a decree be entered in favor of plaintiffs.
