235 F. 833 | 5th Cir. | 1916
(after stating the facts as above). For support of the claims asserted by the bill and by the intervening petitions much reliance is placed upon provisions contained in the above-mentioned act of Congress of Eebruary 8, 1887, which was enacted, and the provisions of which were formally accepted by the patentee, after the date of the issue of the attacked patent, but before the patentee made the conveyance to Jabez B. Watkins, through whom the appellee Gulf Lumber Company claims title. The tract in question was embraced in the grant and confirmation to the New Orleans Pacific Railroad Company made by section 2 of that act, unless it was excepted by the proviso to that section:
“That all said lands occupied by actual settlers at the date of the definite location of said road and still remaining in their possession or in possession of their heirs or assigns shall be held and deemed excepted from said grant and shall be subject to entry under the public land laws of the United States.”
It is contended by the counsel for the appellants that that proviso, and the provision of section 6 of the same act making it applicable to lands excepted from the grant and confirmation which had already been patented before the act was passed, had the effect of giving to land occupied by an actual settler at the date of the definite location of the road, and remaining in his possession or in the possession of his (heirs or assigns at the time of the passage of the act, but which had been previously patented and the title to which was held by the patentee at the time it accepted the provisions of the act, the status of erroneously patented lands, which the patentee' was obligated to relinquish or reconvey to the United States upon the demand of the Secretary of the Interior, and the patent to which was subject to be canceled in a suit brought for that purpose by the Attorney General pursuant to the authority and command of section 2 of the act of March 3, 1887, entitled “An act to provide for the adjustment of land grants made by Congress to aid in the construction of railroads and for the .forfeiture of unearned lands, and for other purposes.” 24 Stat. 556, c. 376; 2 U. S. Comp. St. 1913, § 4896. These, contentions are combatted by counsel for the appellees upon grounds not now necessary to be stated or considered. It is not material to determine whether the patent'was or was not subject to cancellation if, because of a (July pleaded bar caused by lapse of time or otherwise, that relief, though the plaintiff formerly was entitled to it, is not grant-
In this connection, the decision in the case of Northern Pacific Railway Co. v. United States, 227 U. S. 355, 33 Sup. Ct. 368, 57 L. Ed. 544, was called to our attention. There is an obvious distinction between the facts of that case and those of the case at bar. It was held in that case that the limitation which the statute created did not apply to a suit for the cancellation of a patent to land which at and prior to the date of the issue of the patent belonged, not to the United States as a part of its public domain, but to the Yakima Indians, being part
What has been said disposes of the attack upon the decree except as to that part of it which adjudged against the claims asserted by the intervening petitions and quieted the Gulf Lumber Company in its ownership and possession of the lands involved in the suit. That part of the decree might properly be the subject of complaint by the interveners if the effect of it was to deprive them of an interest in the land to which the evidence showed that they were entitled.
As neither of the appellants has a just ground of complaint against that decree, it is affirmed.
MAXEY, District Judge, was prevented by illness from participating in the decision of this case.