39 F. 132 | U.S. Circuit Court for the District of Southern California | 1889
By the bill filed in this case the United States seek to annnceriain patents issued by them to the Southern Pacific Railroad Company on March 29, 1876, April 4, 1879, and December 27, 1888, respectively, for lands situated in Los Angeles county, Cal., and to quiet plaintiffs’ alleged title thereto. To the bill, as amended, demurrers have been interposed which raise the question of the sufficiency of the matters alleged to entitle the plaintiffs to the relief sought. The allegations, in substance, are that congress by an act approved July 27, 1866, entitled “An act granting lands to aid in the construction of a railroad and telegraph line from the states of Missouri and Arkansas to the Pacific coast,” granted to the Atlantic & Pacific Railroad Company, for the purpose of aiding in the construction of said railroad, etc., “every alternate section of public land, not mineral, designated by odd numbers, to the amount of twenty alternate sections per mile on each side of said railroad line, as said company may adopt, through the territories of the United States, and ten alternate sections of land per mile on each side of said railroad whenever It passes through any state, and whenever on the line thereof the United States have full title, not reserved, sold, granted, or otherwise appropriated, and free from pre-emption or other claims or rights at the time the line of said road is designated by a plat thereof filed in the office of the commissioner of the general land-office, and whenever prior to said time any of said sections or parts of sections shall have been granted, sold, reserved, occupied by homestead settlers, or pre-empted, or otherwise disposed of, other lands shall be selected by said company in lieu thereof, under the direction of the secretary of the interior, in alternate sections and designated by odd numbers, not more than 10 miles beyond the limits of said alternate sections, and not including the reserved numbers: provided, that if said route shall be found upon the line of any other railroad route, to aid in the construction of which lands have been heretofore granted by the United States, as far as the routes are upon the same general line, the amount of land heretofore granted shall be deducted from the amount granted by this act.” That by section 4 of the same act it is provided that whenever said Atlantic & Pacific Company shall have 25 consecutive miles of any portion of said railroad and telegraph lino ready for the -service contemplated, the president shall appoint three commissioners to examine the same, and if it shall appear that 25 consecutive miles of the road and telegraph line have been completed as required by the act, the commissioners shall so report to the president, and patents shall be issued to said company, confirming thereto “the right and title to said lands situated opposite to and coterminous with said completed section of said road;”
The bill, as amended, further alleges that by section 23 of an act of congress approved March 3, 1871, entitled “An act to incorporate the Texas Pacific Railroad Company, and to aid in the construction of its road, and for other purposes,” it was provided as follows:
“That for the purpose of connecting the Texas Pacific Eailroad with the city of San Francisco, the Southern Pacific Railroad Company of California is hereby authorized (subject to the laws of California) to construct a line of railroad from a point at or near Tehachapa Pass, by way of Los Angeles, to the Texas Pacific Railroad at or near the Colorado river, with the same rights, grants,'and privileges, and subject to the same limitations, restrictions, and conditions as were granted to said Southern Pacific Railroad Company of California by the act of July 27, 1866: provided, however, that this section shall In no way affect or impair the rights, present or prospective, of the Atlantic & Pacific Railroad Company, or any other railroad company.”
The bill', as amended, alleges that the Southern Pacific Company accepted this grant, and on April 3, 1871,. did designate the line of its said road by a plat thereof which it on that day filed in the office of the commissioner of the general land-office, and did construct and complete the same in the manner and within the time prescribed, except that it did not connect with the Texas & Pacific Railroad. It is averred that on or about March 29, 1876, April 4, 1879, and December 27, 1883, respectively, the commissioner of the general land-office, without any authority of law therefor, caused certain patents to be signed by the p>resident and by the recorder of the general land-office, and issued the same to the Southern Pacific Railroad Companj^ for certain lands situated in
It is further averred that on or about March 27, 1837, Ignacio Palomares and Ricardo Vejar presented a petition to Juan B. Alvarado, then governor of Upper California under the Mexican government, fora grant of the place known by the name of “'San José.” That thereupon, after investigation, such grant was, on April 15,1837, duly made by Governor Alvarado to said Palomares and Vejar of the place called “San José,” in conformity with the plat attached to the petition, and within the boundaries therein expressed. That thereafter, and on or about December 16, 1839, one Louis Arenas and said Ignacio Palomares and Ricardo Vejar presented their petition to the prefect of the district for a grant for the land called “San José,” ceded by the decree of April 15, 1837, and one additional league of grazing land. That subsequently, to-wit, March 14, 1840, the then governor of the department of the Californias granted the land so petitioned for to said Arenas, Palomares, and Vejar, and that thereafter said grant was duly approved by the departmental assembly, and juridical possession of said land given to the said grantees. That on or about September, 1852, Henry Dalton, Ignacio Palomares, and Ricardo Vejar each severally filed his claim for confirmation of one-third of the place called “San José,” granted as aforesaid, with the board of land commissioners, pursuant to the act of congress of March 3, 1851, entitled “An act to ascertain arid settle the private land claims in the state of California,” and thereafter, and on or about January 31, 1854, the said board rendered and entered its three several decrees confirming to each of said claimants the land applied for. That on appeal to the
By an amendment to the amended bill it is alleged that the plaintiffs have elected and do elect “to hold, select, reserve, and set apart all the lands in suit herein as a part of said twenty sections per mile granted to said Alantic & Pacific Railroad Company by said act of congress of July 27, 1866, and which were deducted and excluded from said grant to said Soilthern-Pacific Railroad Company on account of said grant to said
While in these eases but a comparatively small amount of land is involved, the suits, it seems from a decision of the secretary of the interior rendered June 23,1888, and reported in volume 6 of the decisions of the department of the interior, page 816, were instituted by the government to test its right to a large amount of land similarly situated. That decision was made upon an application on the part of the Southern Pacific Railroad Company that it be called on, under the act of congress of March 3, 1887, for a reconveyance of the lands which were held by the laud department to have been improperly patented to said company, so that upon a refusal to reconvey, suits might be brought by the government to set aside such patents, and that no further patents should be issued to said company for lands in the limits of the forfeited grant to the Atlantic & Pacific Railroad Company; and also that the then sub sistlng withdrawal of lands within the primary grant limit of the Southern Pacific Railroad, (branch line,) which are also within the granted and indemnity limits of the Atlantic & Pacific Railroad, should remain undisturbed until the rights of the Southern Pacific Company could be determined by suits before the courts. The secretary, in deciding upon the application, after dividing the lands covered by the grants into three classes, to-wit: (1) Lands within the common primary limits of the grant to the Atlantic & Pacific Railroad Company and, of the grant to the Southern Pacific Railroad Company, (branch line;) (2) lands within the primary limits of the grant to the Southern Pacific Railroad Company, (branch line,) and within the indemnity limits of the grant to the Atlantic & Pacific Railroad Company; (3) lands within the indemnity limits of the grant to the Southern Pacific Rail road Company, (branch line,) and within the primary limits of the grant to the Atlantic & Pacific Railroad Com
The act of July 27,1866, unlike almost all other grants of land made by congress to aid in the construction of railroads, does not in terms fix a lateral limit within which the land granted is to be taken; but, reading sections 3 and 4 of the act together, and remembering what must never be forgotten in the construction of such grants, that the act is a law as well as a grant, and that effect must be given to the intention of congress in making it, I think a lateral limit of 20 miles is, in effect, fixed within which the lands granted are to be taken, with a provision for the selection of indemnity lands, in alternate sections, and designated by odd numbers, not more than ten miles beyond the limits of the sec-
As appears from the bill the lands in controversy here are situated along and within 20 miles of the line of the road of the Southern Pacific Railroad Company as designated by its plat filed April 3, 1871, and as thereafter actually constructed, and more than 20 miles from, but within 30 miles of, the route of the Atlantic & Pacific Company as designated by its plat filed March 12, 1872. Had they been situated within 20 miles of the designated route of the Atlantic & Pacific Company they would clearly have fallen within the grant to. that company, and consequently have been excluded from the subsequent grant to the Southern Pacific Company; for, if the construction above put upon the act of July 27, 1866, be the correct one, every alternate section of public land, designated by odd numbers, within 20 miles of the line of the road, as definitely fixed, would have passed to the Atlantic & Pacific Company as of the date of its grant. Railroad Co. v. Railroad Co., 112 U. S. 726, 5 Sup. Ct. Rep. 334; Railroad Co. v. Railroad Co., 117 U. S. 408, 6 Sup. Ct. Rep. 790, and cases there cited. It is contended by the government that all public lands designated by odd numbers, and embraced within the indemnity limits of the grant to the Atlantic & Pacific Railroad Company are also excepted from the grant to the Southern Pacific Railway Company by reason of the proviso to the twenty-third section of the act of March 3, 1871, which, as has been seen, reads: “Provided, however, that this section shall-in no way affect or impair the rights, present or prospective, of the Atlantic & Pacific Railroad Company, or any other-railroad company.” The reason why, in grants in which a limit is prescribed, and all the alternate odd or even sections within the limit are granted, title to such sections attaches as of the date of the grant, and. why, to lands embraced within the indemnity or lieu limits, no title attaches prior to selection, is that in the one Case the land granted becomes ascertained, and consequently the title thereto fixed and perfected, by the location of the line of the road, whereas in the other case, there are no means known to the law by which the lands embraced in the grant can be ascertained prior to their selection. Authorities, supra. To lands to which no title could attach prior to selection I do not think the Atlantic & Pacific Company had, at the time of the grant to the Southern Pacific Company, a present or prospective right. If it hád
In addition to the proviso to which the grant to the Southern Pacific Company w'as made subject by the act of March 8, 1871, the grant to that company was also made subject to the provision that if the route it was authorized to designate should be found to be upon the lino of any other railroad route, to aid in the construction of which lands have been heretofore granted by the United States, “as far as the routes are upon the same general lino, the amount of land heretofore granted shall be deducted from the amount granted by this act.” The grant to the Atlantic & Pacific Company was the prior grant, and the amount of land granted to it was 10 sections per mile on each side of its road when it passes through a state. This amount, by the provision annexed to the grant to the Southern Pacific Company, is to be
But one other point remains to be considered, and that-is that the bill shows on its face such laches as that a court of equity should refuse to grant any relief, at least as against those who are purchasers from the. railroad company. It is sufficient to sa.y in response to this that the case here is not one in which the government has allowed its name to be used for the sole benefit of a private person, in which event it would be a mere nominal complainant, but here the government is the real party complainant, seeking the enforcement of its own rights, and is therefore not bound by any statute of limitations nor barred by any laches of its officers, however gross. U. S. v. Beebe, 127 U. S. 338, 8 Sup. Ct. Rep. 1083. It results from these views that the demurrers in each of the cases should be overruled, with leave to the defendants to answer within the usual time. Ordered accordingly.