WEYERHAEUSER v. HOYT
No. 24
Supreme Court of the United States
Decided February 20, 1911
Restored to docket for reargument December 19, 1910
219 U.S. 380
APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT. Argued April 27, 28, 1910. Reargued January 19, 20, 1911.
As then our conclusion is that the case under consideration is not controlled by the ruling in Ex parte Wisner or kindred cases, but is governed by the general rule expressed in Ex parte Hoard and followed in In re Pollitz and Ex parte Nebraska, and, lastly, applied in Ex parte Gruetter, it clearly results that the application for leave is without merit, and
Leave to file is denied.
Syllabus.
It was the purpose of Congress, as evidenced by the original Northern Pacific Land Grant Act of
The right of the company to lieu lands lawfully embraced in selections filed with the Secretary of the Interior excluded lands to which rights of others had attached before the selection and also excluded
The power of the Secretary to approve selections is judicial in its nature, and implies the duty to determine as of the time of filing the selection and the doctrine of relation applies to decisions as to validity of such selections.
In this case held, that the company‘s rights to lieu lands embraced in a selectiоn were superior to those of a purchaser under the Timber and Stone Act who filed pending final decision by the Secretary and between the time of decision of the Secretary holding that the selections were unlawful and the subsequent reversal of that decision; and that the final decision related back to the date of the original selection. Sjoli v. Dreschel, 199 U. S. 564, distinguished.
General expressions in every opinion are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but they are not controlling when the very point is presented in a subsequent case.
General expressions in an opinion such as those in Sjoli v. Dreschel, 199 U. S. 564, will not be made the basis for overthrowing a uniform rule of the Land Department, involving destructive effects upon property rights existing under different conditions.
The contention in this case, overruled by the Secretary, that the company was not entitled to lieu lands within indemnity limits because not on the same side of railroad as the place lands lost, held to be without merit.
Where a matter regarding selection of lieu land is wholly within the jurisdiction of the Secretary deciding it, this court will assume that the facts on which the decision rested were properly proved.
Humbird v. Avery, 195 U. S. 485, followed as to construction of provisions of Sundry Civil Act of
Where the object of the bill is to charge the defendant as trustee of land included in lieu limits of a railway grant for the complainant, if it appears that a valid selection was made, proof that defendant‘s grantor never acquired title to the land would not establish complainant‘s right to it.
161 Fed. Rep. 324, reversed.
THE facts, which involve the construction of the Northern Pacific Land Grant Acts, are stated in the opinion.
Mr. Charles W. Bunn for plaintiffs in error in No. 181.
Mr. M. H. Stanford for appellees in No. 24 and appellants in No. 12.
Mr. P. B. Gorman for defendant in error in No. 181.1
MR. CHIEF JUSTICE WHITE delivered the opinion of the court.
Conflicting claims to forty acres of land in the State of Minnesota is the controversy which this case involves. Both parties assert title derived from the United States, the appellants in virtue of a patent issued under a land grant made to the Northern Pacific Railroad Company and the appellees as the result of an alleged purchase under the timber and stone act. The facts are these:
The Northern Pacific Railroad Company in 1883 filed in the Land Department a list of indemnity selections which embraced the land in question. In 1893 a rearranged list was filed, differing from the previous one, in that it specified the particular tract of land lost in the place limits for which each described selection within the indemnity limits was made. The Land Department having ruled that the eastern terminus of the Northern Pacific Railroad Company was not at Ashland but at Duluth, a point west of Ashland, the selections, so far as they related to lands east of Duluth, among which was the land in con
In 1900 (Doherty v. Northern Pacific Ry. Co., 177 U. S. 421, 435) it was decided that the eastern terminus of the Northern Pacific Railroad was at Ashland, and therefore that the Land Department had erred in holding that such terminus was at Duluth. The Secretary of the Interior then formally reinstated the list of selections previously filed by the railroad company, the entry of Jones was cancelled, and the selections were approved and patents issued to the Northern Pacific Railway Company as entitled to all rights under the selections. The railway company conveyed the tract in controversy to Weyerhaeuser and Humbird, the present appellants.
This suit was then begun by Hoyt in a court of the State of Minnesota against Weyerhaeuser and Humbird to compel a conveyance of the land and to restrain the cutting or removal of timber during the pendency of the suit, on the ground that the title was held by the defendants in trust for complainant. The right to relief was principally based upon the contention that the purchase by Jones under the
The decision of the court was based upon the conclusion that the application to purchase made by Jones, although subsequent in date to the filing by the railroad company of its list of indemnity selections, was paramount to such selections, even although they had been subsequently approved by the Secretary of the Interior. This was not however the result of an interpretation originally considered of the granting act, but was exclusively caused, as shown by the opinion of the court, by what was held to be the authoritative and controlling operation of a decision of this court. Sjoli v. Dreschel, 199 U. S. 564. The soundness of this view lies at the threshold of the case, since, if it be that the rights of the parties are authoritatively concluded by the ruling in the Sjoli case, it will not be necessary to further consider the subject. Coming at once to analyze the ruling in the Sjoli case in order to fix its true import, we think it is apparent that the court below was mistaken in holding that the decision was here au-
The Sjoli controversy, succinctly stated, thus arose: A homestead settler went in 1884 upon land within the indemnity limits of the grant to the Northern Pacific Railroad Company. He erected a dwelling-house and moved into it with his family and cultivated a portion of the land, all prior to the filing in 1885 of a list of selections by the railroad company, embracing the tract settled upon by Sjoli. Although the settler had thus prior to the filing of the list of selections entered upon and improved the land with the intention of perfecting title under the homestead laws, his application to enter, for reasons which need not be here adverted to, was not made until subsequent to the filing by the railroad company of its list of selections. Relying upon this fact, the railroad company opposed the application of Sjoli, and the proceedings which took place in the Land Department simply required the department to determine whether the railroad company, by the filing of its list of selections, could deprive the settler Sjoli of his rights, despite the fact that his settlement and improvement of the land had occurred prior to the filing by the company of its list of selections. The Land Department decided in favor of the settler, and a patent was issued to him.
The matter decided by this court in the Sjoli case arose from the bringing of a suit by Dreschel, as assignee of the rights of the railroad company, asserting that Sjoli held the land in trust for him as the grantee of the railway company, because the Land Department had, as a matter of law, erred in deciding that the rights of the settler Sjoli were paramount to the subsequent selection by the railroad company, since at the time of the filing of such list of selections no record evidence existed in the Land
In Shepley v. Cowan there was conflict between a preemption claim and a selection on behalf of the State of Missouri under an act of Congress conveying to the State a large quantity of land to be selected by the governor,
“The party who takes the initiatory step in such cases, if followed up to patent, is deemed to have acquired the better right as against others to the premises. The patent which is afterward issued relates back to the date of the initiatory act, and cuts off all intervening claimants. Thus the patent upon a state selection takes effect as of the time when the selection is made and reported to the land office; and the patent upon a preemption settlement takes effect from the time of the settlement as disclosed in the declaratory statement or proofs of the settler to the register of the local land office.”
On page 338, after distinguishing Frisbie v. Whitney, 9 Wall. 187, and Yosemite Valley Case, 15 Wall. 77, the court said:
“But whilst, according to these decisions, no vested right as against the United States is acquired until all the prerequisites for the acquisition of the title have been complied with, parties may, as against each other, acquire a right to be preferred in the purchase, or other acquisition of the land when the United States have determined to sell or donate the property. In all such cases the first in time in the commencement of proceedings for the acquisition of the title, when the same are regularly followed up, is deemed to be the first in right.”
In St. Paul Railroad v. Winona Railroad, 112 U. S. 720, one of the questions arising for decision was which of two railroad companies was entitled to certain tracts of lieu lands situated within overlapping indemnity limits of certain grants made by an act of Congress to the Territory of Minnesota, to aid in the construction of the roads of the contesting companies. The selections were to be made by the governor, and required the approval of the Secretary of the Interior. The Winona company filed a list of selec-
“The time when the right to lands becomes vested, which are to be selected within given limits under these land grants, whether the selection is in lieu of lands deficient within the primary limits of the grant or of lands which for other reasons are to be selected within certain secondary limits, is different in regard to thоse that are ascertained within the primary limits by the location of the line of the road.”
After referring to prior decisions the conclusion was reached that, as to the lands to be selected, “priority of selection secures priority of right,” and that as the Winona company alone had made selection of the lands, and that selection was lawful, the right to the land as against third parties vested in the Winona company as of the date of the filing of its lists of selections. In concluding the opinion it was said (p. 733):
“It is no answer to this to say that the Secretary of the Interior certified these lands to the State for the use of the appellant. It is manifest that he did so under a mistake of the law, namely, that appellant, having made the earlier location of its road through these lands, became entitled to satisfy all its demands, either for lieu lands or for the extended grant of 1864, out of any odd sections within twenty miles of that location, without regard to its proximity to the line of the other road. We have already shown that such is not the law, and this erroneous de-
cision of his cannot deprive the Winona company of rights which became vested by its selection of those lands. Johnson v. Towsley, 13 Wall. 72, 80; Gibson v. Chouteau, 13 Wall. 92, 102; Shepley v. Cowen, 91 U. S. 330, 340; Moore v. Robbins, 96 U. S. 530, 536.”
So, also, in Oregon & C. R. R. v. United States, 189 U. S. 103, the court said (p. 112):
“Now, it has long been settled that while a railroad company, after its definite location, acquires an interest in the odd-numbered sections within its place or granted limits—which interest relates back to the date of the granting act—the rule is otherwise as to lands within indemnity limits. As to lands of the latter class, the company acquires no interest in any specific sections until a selection is made with the approval of the Land Department; and then its right relates to the date of the selection. And nothing stands in the way of a disposition of indemnity lands, prior to selection, as Congress may choose to make;”
The doctrine thus affirmatively established by this court as we have said has been the rule applied by the Land Department in the practical execution of land grants from the beginning. Porter v. Landrum, 31 L. D. 352; Southern Pacific Railroad Co., 32 L. D. 51; Santa Fe Pacific Railroad Co., 33 L. D. 161; Eaton v. Northern Pacific Railway Co., 33 L. D. 426; Santa Fe Pacific Railroad Co. v. Northern Pacific Railway Co., 37 L. D. 669. The well settled rule of the Land Department on the subject was thus stated by the then Assistant Attorney General in the Department, now Mr. Justice Van Devanter as follows:
“Under this legislation the company was, by the direction or regulations of the Secretary of the Interior, required to present at the local land office selections of indemnity lands, and these selections, when presented conformably to such direction or regulations, were to be entertained and noted or recognized on the records of the local office. When this was done the selections became lawful filings;
and while, until approved and patented, they would remain subject to examination, and to rejection or cancellation where found for any reason to be unauthorized, they, like all other filings, were entitled to recognition and protection so long as they remained undisturbed upon the records. “There is no question in this case as to the sufficiency of the loss assigned, or as to the formality and regularity of the selection.
“What effect has been given to a pending railroad indemnity selection?
“Prior to 1887 the rights of a railroad company within the indemnity belt of its grant were protected by executive withdrawal, but on August 15, that year, these withdrawals were revoked, and the land restored to settlement and entry; but such orders, although silent upon the subject, were held not to restore lands embraced in pending selections. Dinwiddie v. Florida Railway & Navigation Co., 9 L. D. 74. In the circular of September 6, 1897, (6 L. D. 131), issued immediately after the general revocation of indemnity withdrawals, it was provided that any application thereafter presented for lands embraced in a pending railroad indemnity selection, and not accompanied by a sufficient showing that the land was for some cause not subject to the selection, was not to be accepted, but was to be held subject to the claim of the company under such selection. In fact, a railroad indemnity selection, presented in accordance with departmental regulations and accepted or recognized by the local officers, has been uniformly recognized by the land department as having the same segregative effect as a homestead or other entry made under the general land laws.”
Despite the doctrine of this court as expounded in the cases previously referred to, the unbroken practice of the Land Department from the beginning in the execution of land grants, impliedly sanctioned by Congress during the
What we have already said as to the Sjoli case would suffice to dispose of the suggestion concerning that case, but we shall recur to it. As to the other cases, it would be adequate to say that not one of them involved the question here under consideration nor еven by way of obiter was an opinion expressed on such question. Indeed, all the cases relied upon may be placed in one of three classes: a, those involving the nature and character of the right, if any, to indemnity lands prior to selection; b, whether such lands, after the filing of a list of selections and before action by the Secretary of the Interior thereon, could be taxed by a State to the railroad company as the owner thereof; and, c, those which were concerned with the nature and character of acts which were adequate to initiate a right to public land which would be paramount to a list of selections when the acts were done before the filing of the list of selections. In none of the cases, moreover, was the well-settled doctrine of this court as to relation, even by remote implication, questioned. Indeed, in most of the cases relied upon the previous decisions to which we have referred to expounding the doctrine of relation were approvingly cited or expressly reaffirmed.
While the foregoing disposes of the main propositions which the case presents, there are additional contentions which it is necessary to pass upon. Irrespectivе of any question as to the paramount nature of a list of selections, it is contended on behalf of appellee, contrary to the ruling of the Secretary of the Interior: a, that the selection by the railroad company of the tract in controversy was void and it could not lawfully be approved; b, in any event that he was entitled to the land by virtue of the provisions of an act approved
a. This contention is predicated upon the claim that the selecting company had not sustained a legal loss of the tract in lieu of which the land in controversy was selected, and that if it had sustained the loss the selection was not lawful, because the tract selected was not on the same side of the railroad as the tract lost and was not the nearest unappropriated land to it. These contentions were considered at much length by the Secretary of the Interior in the opinion, copied in the record, affirming the cancellation of the entry of Jones (34 L. D. 105) and were found not to be meritorious. The reasons advanced by the Secretary in support of his rulings upon the legal propositions involved seem to us convincing, and we therefore hold the contentions untenable. Cognate to the contentions just disposed of is a claim made in argument that the filed list of selections was void for the reason that the joint resolution of May 31, 1870, establishing the second indemnity limits, required certain facts to appear in order to entitle the railway company to the land, and that in selecting the
b. This contention asserts that complainant is entitled to the land by virtue of certain provisions relating to the Northern Pacific land grant contained in the subdivision entitled, “Surveying the Public Lands,” embodied in the Sundry Civil Appropriation Act of
c. It is contended that the Northern Pacific Railway Company, under its charter, had no power to purchase the tract of land here in controversy, and that for various reasons the legal proceedings under which the railway com-
It follows that the decree of the Court of Appeals must be reversed and that of the Circuit Court affirmed.
And it is so ordered.
MR. JUSTICE HARLAN, with whom concurred MR. JUSTICE DAY, dissenting.
This case is of sufficient importance to justify a full statement of the facts, as well as the grounds upon which we feel constrained to dissent from the opinion and judgment of the court.
By the final decree under review the Circuit Court of Appeals for the Eighth Circuit unanimously reversed the judgment of the Circuit Court with directions to give the plaintiff Hoyt, now appellee, the relief asked in his bill. The general object of the suit was to have it adjudged that the present defendants, Weyerhaeuser and Humbird, now appellants, should hold the legal title to certain lands in Minnesota in trust for the plaintiff and be enjoined during the pendency of the cause, from selling, disposing of or removing, or from attempting to create any charge upon, the timber standing or lying upon the premises in question.
Many questions have been discussed by counsel. But there is one which seems to require speсial examination. The facts out of which that question arises may be thus stated:
The land in question is the southwest quarter of the southeast quarter of section seven, township fifty-four, of
For the purpose of availing himself of the act of Congress relating to the sale of timber land in California, Oregon, Nevada, and Washington Territory, approved
The Receiver, in conformity with law, at once posted in his office, for the required time, the fact of such application, describing the lands by legal subdivision and furnishing Jones a copy of such notice. That notice was duly published in the newspaper nearest to the land. On the twenty-seventh day of March, 1898, no adverse claim to the land having been filed in the Land Office, the applicant, Jones, after furnishing to the local Register satisfactory proofs of the preliminary facts required by law, paid to the Receiver the full purchase price of the land, together with all fees legally due to those officers. Thereupon he was permitted, December 10, 1898, to enter, and did enter the land, the Receiver executing and delivering to him at the time an official receipt and certificate of purchase. In December, 1898, all the papers and testimony in the matter
On the second day of December, 1901—nearly three years after Jones got his certificate of purchase and after he had sold the land—the Commissioner of the General Land Office made a decision, holding for cancellation the entry made by Jones, as above stated; declaring it to be void on the ground that this land (using the words of the Commissioner) “was selected by the Northern Pacific Railroad (now Railway Company) October 17th, 1883 for the second indemnity, per list, rearranged list 15 B, in lieu of land in Section 11, T. 46, R. 16 W., in the primary limits disposed of between date of grant and definite location of the road, which selection has not since been abandoned or the basis otherwise used. The selection was cancelled, however, by letter of March 22, 1897, because the land is east of Duluth, the then [supposed] eastern terminal of the grant under departmental ruling; but said cancellation was rescinded and the selection restored; by letter of May 26, 1900, under the decision of the U. S. Supreme Court, United States v. Northern Pacific R. R. Co., 177 U. S. 435, that the grant extends to Ashland, Wisconsin. December 17, 1897, Richard B. Jones applied to purchase said tract under the Timber & Stone law, and after due publication and proof, made entry thereof December 10, 1898. Cash certificate No. 14812. Under the decision of the court, the selection of the company is a valid selection, and the claim of Jones not having been perfected prior to January 1, 1898, his claim is not within the act of July 1, 1898 (Departmental decision of May 22, 1900, Salter v.
It does not appear that Jones, or any one claiming under him, had any previous notice of this order, or that there was any trial or regular hearing of the matter in the General Land Office.
Upon appeal to the Secretary of the Interior, the above order of December 2, 1901, was affirmed, and subsequently, but not until October, 1905, a patent was issued to the Northern Pacific Railway Company. 35 L. D. 105.
When Jones entered and purchased the land, paying the Government price for it, and receiving a certificate of his purchase—which purchase was made and which certificate was given nearly seven years before a patent was issued to the Railroad Company—there was in the Land Office a list of selections alleged to have been filed by the Railroad Company on October 17, 1883. But the list did not assign each selection to specific land in the granted limits, which it was asserted had been lost by the cоmpany. That list was received at the local Land Office, and transmitted to the General Land Office. But on the eleventh of April, 1893 the Railroad Company, acting under the direction or suggestion of the Secretary of the Interior, “rearranged” its list so as to specify the particular tract lost in the primary limits. In such list the lands in dispute here were set opposite to particular lands lost in those limits. The lands mentioned in the company‘s list, whether we take the original or rearranged list, were, it must be remembered, within the indemnity limits of the grant made by Congress in 1864 in aid of the construction of the Northern Pacific Railroad. That is not disputed.
The principal assignment of error is that the entry and purchase by Jones—under whom Hoyt claims—of the lands in question were subordinate to the rights acquired
Upon final hearing in the Circuit Court, the bill was dismissed. But upon appeal to the Circuit Court of Appeals, all the judges concurring, that judgment was reversed, and the case sent back with directions to enter a decree for the relief asked in the bill. Rec. 214; Hoyt v. Weyerhaeuser, 161 Fed. Rep. 324. The principles in the latter case were accepted and applied by the Supreme Court of Minnesota in Northern Pacific Ry. Co. v. Wass, 104 Minnesota, 411.
Section 3 of the charter of the Northern Pacific Railroad Company of July 2, 1864, provided: “And be it further enacted, that there be, and hereby is, granted to the ‘Northern Pacific Railroad Company,’ its successors and assigns, for the purpose of aiding in the construction of said railroad and telegraph line to the Pacific coast, and to secure the safe and speedy transportation of the mails, troops, munitions of war, and public stores, over the route of said line of railway, 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 preemption, or other claims or rights, at the time the line of said road is definitely fixed, and 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
But Congress afterwards broadened or extended the limits into which the Railroad Company, under the direction of the Secretary, might go in order to supply deficiencies in the granted limits. By the joint resolution of May 31, 1870, c. 67, 16 Stat. 378, amending the above act of 1864, “Second indemnity limits” were created. The resolution provided: “And in the event of there not being in any state or territory, in which said main line or branch may be located, at the time of the final locаtion thereof, the amount of lands per mile granted by Congress to said company, within the limits prescribed by its charter, then said company shall be entitled, under the directions of the Secretary of the Interior, to receive so many sections of land belonging to the United States, and designated by odd numbers, in such state or territory, within ten miles on each side of said road beyond the limits prescribed in said charter, as will make up such deficiency, on said main line or branch, except mineral and other lands as excepted in the charter of said company of 1864 to the amount of lands that have been granted, sold, reserved, occupied by homestead settlers, preempted, or otherwise disposed of subsequent to the passage of the act of July two, eighteen hundred and sixty-four. . . .”
The fundamental inquiry in the case is whether Jones’ entry, occupancy and purchase of the lands were subject or subordinate to the previous filing of the list of selections by the Railroad Company, the Secretary of the Interior not having approved such list until after such entry, occupancy, and purchase by Jones. The judgment below
These grounds were sustained by a well-reasoned opinion delivered by Judge Sanborn on behalf of the Circuit Court of Appeals. In view of the elaborate discussion by counsel and by the majority of my brethren, it will be instructive to make a liberal extract from that opinion. After observing that lands within indemnity limits did not cease to be public lands open to settlement under the homestead laws, simply because of their having been embraced in a list of selections filed by the Railroad Company to supply losses within place limits, the Circuit Court of Appeals (the italics being ours) said: “The company‘s unapproved selections did not, therefore, stand in the way of the lands being occupied and entered under the homestead laws. The mere filing of its lists of selections of indemnity lands did not have the effect to exclude them from occupancy under the preemption or homestead laws. . . . . The question here is not the jurisdiction but the legality of the decision of the Land Department
Many cases, among which was the recent case of Sjoli v. Dreschel, 199 U. S. 564, were cited by the Circuit Court of Appeals to sustain its conclusion. Attention is specially directed to that case because it was only recently decided after full consideration. The facts in it differ, in some respects, from those in the case now before us, but the principles announced in the Sjoli case were clearly the result of previous cases. They directly bear upon the question now under consideration.
It appears from the report of the Sjoli case that he settled on the land there in dispute in 1884 and his original application was in 1889; whereas, the Railroad Company filed its list of selections of lands within indemnity limits to supply deficiencies in place limits in 1885, Sjoli then being in the actual occupancy of the land, and having the intention, by a formal application, to perfect his claim under the homestead laws. Dreschel claimed under the Railroad Company. Sjoli got a patent in 1901 based primarily on his prior occupancy. That was after the company filed its selections. The essential question in the case was as to the rights of the homestead settler as against the Railroad Company which had filed its list of selections of the lands after the homesteader settled on the lands with the intention to acquire them, but before he made his formal application for them. Summing up the doctrines previously established, this court declared in the Sjoli case that from its previous cases the following propositions were to be deduced: “That the Railroad Com-
But the defendants insist that as Jones’ occupancy of and application for the land was made while there was pending in the Land Office an unapproved list of selections
As counsel have made an earnest and extended argument in support of the contrary view it may be well to recall a few leading cases on the subject, and see just what has been adjudged.
In Ryan v. Central Pacific R. R. Co., 99 U. S. 382, the court construed the second section of the act of July 25, 1866, c. 242 (14 Stat. 239), granting to a company, for the purpose of aiding in the construction of a railroad and telegraph line, alternate odd sections of public land, for ten miles on each side, subject, however, to the condition that the Railroad Company might, under the direction of the Secretary, select alternate odd sections, within ten miles on each side, nearest the place limits, to supply deficiencies in lands found to have been granted, sold, reserved, occupied by homestead settlers, preempted or otherwise disposed of. As to lands in the place limits, the court said that the right of the company to the odd sections became fixed and absolute, when the road was located and the maps of such location were filed. But, said the court, speaking by Mr. Justice Swayne, “with respect to the lieu lands, as they are called, the right was a float, and attached to no specific tracts until the selection was actually
A similar question under another land grant act arose in Kansas Pacific R. R. Co. v. Atchison &c. R. R. Co., 112 U. S. 414. The claim in that case was under an act of Congress of July 1, 1862, c. 120 (12 Stat. 489), which made a grant of lands designated by odd numbers on each side of the railroad, “which were not sold, reserved or otherwise disposed of by the United States and to which a preemption or homestead claim had not attached at the time the land was definitely fixed.” This court, speaking by Mr. Justice Field, said: “A right to select them [lands] within certain limits in the case of deficiency within the ten mile limit, was alone conferred, not a right to any specific land or lands capable of identification by any principles of law or
In Kansas P. R. R. Co. v. Dunmeyer, 113 U. S. 629, 639, 644, which involved rights under the act of July 2, 1864, (c. 317, 13 Stat. 365), granting lands to a railroad company the court, speaking by Mr. Justice Miller, said: “The reasonable purpose of the Government undoubtedly is that which it expressed, namely, while we are giving liberally to the Railroad Company, we do not give any lands we have already sold, or to which, according to our laws, we have permitted a preemption or homestead right to attach. No right to such land passes by this grant. No interest in the Railroad Company attaches to this land or is to be founded on this statute.” This case was followed in Hastings & D. R. Co. v. Whitney, 132 U. S. 357, 366; Whitney v. Taylor, 158 U. S. 85, 92-3, and Northern Pacific R. R. Co. v. Sanders, 166 U. S. 620.
In Wisconsin C. R. Co. v. Price County, 133 U. S. 496; 511, the court, speaking by Mr. Justice Field, in determining the effect of the mere filing of the list of selections, said: ”Until the selections were approved there were no selections in fact, only preliminary proceedings taken for that purpose; and the indemnity lands remained unaffected in their title. Until then the lands which might be taken as indemnity were incapable of identification; the proposed selections remained the property of the United States. . . . The Government was, indeed, under a promise to give the company indemnity lands in lieu of what might be lost by the causes mentioned. But such promise passed no title, and, until it was executed, created no legal interest which could be enforced in the courts.” The mere filing of lists of selections after the acceptance of the map of definite location of the railroad line between Duluth and Ashland gave the company no such title as could be enforced by the courts in a suit between private parties. It is true, the Government was under a promise to give the Railroad Company lands
In United States v. Missouri &c. Railway, 141 U. S. 359, 374-5, which case related to a railroad land grant, it was observed that certain even-numbered sections within the indemnity limits of the particular railroad concerned could, under the statute there in question, have been legally selected as indemnity lands, if no rights had attached to them before their selection, with the approval of the Secretary of the Interior. The court then proceeds: “We say, prior to such selection and approval, because as to lands which may legally be taken for purposes of indemnity the principle is firmly established that title to them does not vest in the railroad company, for the benefit of which they are contingently granted, but, in the fullest legal sense, remains in the United States, until they are actually selected and set apart, under the direction of the Secretary of the Interior, specifically for indemnity purposes“—citing, among other cases, Sioux City &c. Railroad v. Chicago, Milwaukee &c. Railroad, 117 U. S. 406, 408, in which the court, speaking by Mr. Justice Miller, said: “No title to indemnity lands was vested until a selection was made by which they were pointed out and ascertained, and the selection made approved by the Secretary of the Interior.”
In New Orleans Pacific Railway Co. v. Parker, 143 U. S. 42, 57, the language of the court was: “As to lands within the indemnity limits, it has always been held that no title is acquired until the specific parcels have been selected and approved by the Secretary of the Interior“—citing numerous cases.
In Oregon & C. R. Co. v. United States, 189 U. S. 103, the court said: “Having regard to the adjudged cases, it is to be taken as established that, unless otherwise expressly declared by Congress, no right of the Railroad Company attaches, or can attach to specific lands within indemnity
Many other cases to the same effect might be cited.
It is, however, contended that the approval by the Secretary of the Interior of the selection of these lands to supply deficiencies in place limits had relation back to the date when the railroad filed its original list of selections, and had the effect to override any rights acquired by the homesteader after that list was filed, and before such approval. This view, if sustained, would practically destroy the rights given to homesteaders and preemptioners by the acts of Congress as uniformly interpreted by this court. Even after the filing of a list of selection of lands by the beneficiary under the act of Congress, Jones was entitled, of right—prior to the actual approval by the Secretary of the proposed selections—to apply for the lands in dispute, pay for them, get a certificate of his purchase and in that way acquire them. That right attached to the lands when he entered upon and applied for them under the homestead laws, and he could not be arbitrarily prevented from paying the Government price, and obtaining a certificate of purchase, and perfecting his claim under those laws.
Now, if it be true, and all the cases so hold, that after the filing of a list of selections by the Railroad Company of lands within indemnity limits, such lands nevertheless remained fully open to entry, occupancy and purchase by homesteaders; if, as held in Hewitt v. Schultz, above cited, the Secretary of the Interior himself could not, immediately upon the filing of a list by the Railroad Company of selections of indemnity lands, withdraw such lands from entry or sale, and thus prevent their being entered, occupied and purchased by homesteaders, prior to the Secretary‘s actual approval of such selections; and if the mere filing of the list did not, in itself, in advance of any approval by thе Secretary, give the land-grant beneficiary any right or claim whatever, legal or equitable, in or to any
In support of the contrary view much reliance is placed
The first of these cases, in point of time, is Campbell v. Doe, 13 How. 244. But that case has no bearing on the precise point under consideration. That was the case of a contest under an act of Congress giving school lands to townships, the selection to be made by the Secretary of the Treasury. One Hamilton made, as he supposed, a selection of certain lands under that act in conformity with regulations prescribed by the Secretary. But his
The opinion in Campbell v. Doe closes with the suggestion that “under the circumstances no right became vested in him, Hamilton, by reason of his entry of the land, which could be regarded or enforced by a court of equity.” The court did not refer, although counsel did, to the rule about the relation of time as between two acts, each of which is, in itself, efficacious to give some substantial right and was performed by different persons, at different times. It was adjudged in that case—and it was the only point that need have been determined—that the court could not go behind the decision of the Secretary of the Treasury, and that in no view of the case presented could the relief asked be granted by a court of equity; whereas, in the case now before us it must be admitted, in view of the act of Congress and the cases determining its scope and effect, that when Jones occupied and entered, as well as when he purchased the land in dispute, it was part of the public domain, subject to the control of the United States and open to homesteaders and preemptioners, under the
Another case much relied on in this connection by the appellants is Shepley v. Cowan, 91 U. S. 330, 337. That case arose under the act of Congress of September 4, 1841, granting lands to certain States, including Missouri, for purposes of internal improvement, saving such as were or might be reserved from sale by any act of Congress or the proclamation of the President. The plaintiffs claimed title under a patent issued to one McPherson by the State, and purporting to be for lands selected by the State under the above act of 1841. The defendants claimed title under a patent issued by the United States to the heirs of one Chartrand, based on an alleged preemption right acquired by a settlement of their ancestor. McPherson paid for the lands in dispute and got a certificate showing such fact. The selections authorized to be made were subject to the approval of the Secretary of the Treasury. That officer gave such approval. This court, referring, however, to the facts and to certain acts of Congress, held that the State could not legally select the lands in dispute as part of those granted by act of 1841, because they were ”legally reserved from sale,” consequently nothing could be claimed under the selection of McPherson. This view was sufficient to dispose of that case. Nevertheless, the court proceeds to consider another view which was held to be fatal to the claim made under the patent issued to McPherson. “If,” the court said, “the land outside of the survey as retraced by Brown in 1834 could be deemed public land, open to selection by the State of Missouri from the time the survey was returned to the land office in St. Louis, it was equally open from that date to settlement, and consequent preemption by settlers. The same limitation which was imposed by law upon settlement was imposed by law upon the selection of the State. In either
It thus appears that the general rule determining the rights of parties under two different acts, performed at different times, was referred to and applied in a case where each act was of such a substantial character as in itself to give a right, enforcible by law. In the case referred to the selection by the State was wholly void, and could not be made the basis of any right acquired in opposition to the rights of the settler, although it was prior to the act performed by the settler. The “initiatory step” referred to in Shepley v. Cowan was necessarily a step which, in itself, gave some interest in the particular land involved. In the present case, the subsequent act of the homesteader was confessedly in accordance with law, gave him a substantial interest in the land, and was not defeated by reason of the prior act of the Railroad Company in merely filing its list of selections. We say this for the reason that such filing, according to the adjudged cases, could not be made the basis of any right or interest in these particular lands. Within the true meaning of the rule as to the relation of time between two acts of a substantial character, performed at different times, the initiatory step was that taken by Jones when he entered and purchased; for there was no previous step which had in or of itself any efficacy whatever to confer a right in the lands or prevent him from acquiring them.
Substantially, the same comments may be made about the case of McCreery v. Haskell, 119 U. S. 327, 330, which
In the present case the Railroad Company, as we have seen, acquired no interest whatever by merely requesting that it have certain indemnity lands to supply losses in place limits; whereas, in the California case, the prior act to which the subsequent act was referred—the selection by the State—would have given to the State a substantial interest in the lands, provided the lands had been open to selection by it at all. Proceeding on the basis that the selection was valid, the state court held that such selection was a prior substantial, effective act to which the subsequent act may be referred under the rule stated in former cases as to relation of time.
Further citation of authorities would seem to be unnecessary. In our opinion the filing by the Railroad Company of a list of lands, within indemnity limits, which it desired to obtain in order to supply deficiencies in place
One other matter should be referred to. Across the
In our opinion the judgment of the Circuit Court of Appeals should be affirmed.
CAMPBELL v. WEYERHAEUSER.
APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT.
No. 12. Argued April 27, 28, 1910.—Restored to docket for reargument December 19, 1910.—Reargued January 19, 20, 1911.—Decided February 20, 1911.
Decided on authority of Weyerhaeuser v. Hoyt, ante, p. 380.
THE facts are stated in the opinion.
Mr. Charles W. Bunn and Mr. Frank B. Kellogg, with whom Mr. Stiles W. Burr was on the brief, for appellants in No. 24 and appellees in No. 12.