Emslie v. Young

24 Kan. 732

• Court: Supreme Court of Kansas
• Decided: January 15, 1881
• Status: Published

Opinion

The opinion of the court was delivered by

Horton, C. J.:

Passing over the questions of practice and the matters of minor importance presented for our determination, we reach the principal subject of controversy, which is, does the petition sustain the judgment? The judgment is based wholly upon the averments of the petition, and if the petition does not state facts sufficient to constitute a cause of action, the judgment must be reversed.

The facts, as shown by the petition, are briefly these: The land in controversy was, in 1863, public land, open to homestead settlement. In October, 1863, one Randall homesteaded it, and in 1868 he abandoned it. In June, 1869, the line of the railroad of the Atchison, Topeka & Santa Fé railroad company was definitely located opposite to the land, which is within four miles of such located line, and is an odd-numbered section. At the time of such definite location the land was abandoned, but the entry of Randall’s homestead was uncanceled. On November 3, 1869, a withdrawal of lands was made, within the limits of which withdrawal this land is situate. In May, 1874, this land was certified to the state of Kansas, and in February, 1875, patented by the state to the railroad company. In October, 1871, one Stainbrook had Randall’s entry canceled, and he himself homesteaded the land; but his entry was, on the application of the railroad company, afterward canceled, and was only reinstated under the act of Congress of April 21, 1876. Stainbrook obtained a patent and sold to Young, who brought this suit. The act of Congress is referred to in the petition. By this act there was granted to the state of Kansas, in trust for the Atchison, Topeka & Santa Fé railroad company, for the purpose of aiding in the construction of its railroad, every alternate section of land, designated by odd numbers, for ten sections in width on each side of said road, and it was therein provided that in case the United States have, when the lines of said road are definitely fixed, sold any section or any part thereof granted as aforesaid, or that the right of preemption or homestead settlement has attached to the same, or that the same has been reserved by the United States for any purpose whatever, then it shall be the duty of the secretary of ‘the interior to cause to be selected for the purpose aforesaid, from the public lands of the United States, so much land in alternate sections, designated by odd numbers, as shall be equal to such lands as the United States have sold, reserved or otherwise appropriated, or to which the rights of preemption or homestead settlement have attached as aforesaid.

In the case of the- L. L. & G. Rld. Co. v. United States, 2 Otto, 741, the court, construing this act, says: “Itcreates .an immediate interest, and does not indicate a purpose to give in future. ‘There be and is hereby granted’ are words of absolute donation, and import a grant in prcesenti. This court has held that they can have no other meaning; and the land department, on this interpretation of them, has uniformly administered every previous similar grant. They -vest a present title in the state of Kansas, though a survey of lands and a location of the road are necessary to give precision to it, and attach it to any particular tract. The grant becomes certain, and by relation has 'the same effect upon the selected parcels as if it had specifically described them. In other words, the grant was a float until the line of the road should be definitely fixed.” There is, therefore, only one question to be considered. Upon the definite location of the line of the railroad of the Atchison, Topeka & Santa Eé railroad company, under the act of congress of March 3, 1863, did the grant attach to an odd-numbered section within ■ the ten-mile limit, upon which there was an abandoned but uncanceled homestead entry ? The line of the road was definitely located June 30, 1869. At that date there was no valid subsisting homestead entry upon the land. It is true Randall had made a homestead filing on October 21, 1863, but he had, in 1868, abandoned the land as a homestead, and as no subsequent entry or filing was made prior to the time the line of the road was definitely fixed, the land belonged to the railroad company, as no valid or bona fide homestead claim then existed or attached. The right of Randall having been by him forfeited voluntarily, his claim had lapsed, and did not exist. At the time of the location, there was no person who could hold or exercise any claim under the entry or filing of Randall, and therefore there was no subsisting claim capable of being perfected.

It is urged, however, that the claim of Randall, .although abandoned before the location of the road, yet, because it was then uncanceled, had sufficient force and validity to take the land from the railroad company. In brief, that a forfeited and abandoned homestead claim, simply uncanceled upon the books of the land office, has .the like effect to exclude land from the railroad grant as a subsisting valid homestead claim, capable of being perfected and of ripening into an absolute title. Such an interpretation of the act of 1863 is not sustained by the letter or spirit of the statute. The act does not speak of entries or filings as excepting lands from the operation of the grant, but of rights — the right of preemption and homestead. The spirit of the act was to protect preemption and homestead settlers, having valid and subsisting rights, at the time the grant became certain. It was not the intention of congress, by the exceptions in the act, to exclude lands from the grant upon fraudulent or forfeited entries or filings. In our opinion, the land having been abandoned as a homestead claim when the route of the road was fixed, no right of homestead settlement attached to the land, within the meaning of the act, at the date of the location of the road; and that at such location the grant attached to the land, notwithstanding the non-cancellation of the homestead filing of Randall. This conclusion leads us to decide that the land in controversy belonged to the railroad company on May 20,1874, when the deed was executed to N. S. Goss, and that the defendant, John Emslie, is the owner of the land, subject to the mortgage lien of his grantor. (A. T. & S. F. Rld. Co. v. Catlin, Copp’s Pub. Land Laws No. 411, p. 394; Western Pacific Rld. Co. v. Spratt, id. No. 428, p. 416; Sayre v. A. T. & S. F. Rld. Co., id. No. 414, p. 397; M. K. & T. Rld. Co. v. Block, id. No. 412, p. 395.)

The rulings of the land department have not been uniform in its interpretation of the act of 1863, or other similar grants. The decisions of the land department until the Boyd case, April 28,1871, (2 Lester’s Land Laws, 26,) were without exception, that upon the abandonment of an entry by a preemptor or a homesteader, if the land was within a grant made subsequent to the entry abandoned, the land fell to the grant, and this in accordance with the rules of law touching the devolution of estates. In the Boyd case, the rule of decision was there explained to be, in an opinion of the assistant attorney general, approved by the secretary, that, “ there having been a subsisting homestead on the land when the rights of the railroad company attached, on the subsequent abandonment of the homestead, the land reverted to the government, and not to the company; and therefore it was, at the date of Boyd’s application to file for it under the preemption laws, subject to such application, and his filing should have been allowed.” This decision was, in May, 1872, modified in an opinion of the assistant attorney general, made in the case of Starkweather v. A. T. & S. F. Rld. Co., and approved by the secretary. It states that “the homestead entry, in order to exclude the land filed on from the granted indemnity limits, should be a valid and bona fide homestead claim at the time the line of the road is definitely fixed. (A. T. & S. F. Rld. Co. v. Catlin, supra.) This was followed by a decision made in August, 1872, in the case of Railroad Co. v. Svenson and Thurston, as follows: “The act of 1857 exempts from the grant, in place of lands to which the right of preemption has attached at the date of the location of the road, and by the settled construction of this department the same rule applies to indemnity selections. I understand the phrase, 'right of preemption has attached,’ to mean not only a right of preemption which had at some previous time attached, but also such a right as was subsisting at the date of the location of the road.” In the Spratt case, supra, it was decided that “a preemption claim may be defined to be a right or interest subsisting under the preemption law, in some person, to a tract of public land, which by a further full compliance with the law may be ripened into a perfect title. It is essential in a bona fide preemption claim that it subsist in some person, and that it be capable of being perfected.” (M. K. & T. Rld. Co. v. Block, supra.

In the case of Sayre, supra, (1873,) it was decided, that a homestead entry, made before the definite location of the road, but which had been relinquished in writing before such definite location, although the entry was not canceled until after location, did not take the land from the railroad. In February, 1877, it was decided, in the ease of Thomas v. Railroad Co., that “lands situated within the limits of a road above indicated, covered by homestead entries at the date of the granting act, which entries are subsequently canceled, are excepted from the operations of the grant.” Under many of the decisions of the land department, prior to the passage of the act of congress of April 21, 1876, confirming preemption and homestead entries on public lands within the limits of railroad grants, it would seem that the entry of Stainbrook would have been held erroneous. Upon his appeal from the decision of the commissioner of the general land office, refusing to reinstate his homestead entry, the secretary of the interior reversed the decision of his subordinate, upon the ground that the application of reinstatement was made under the act of 1876. Upon this point the secretary says:

“ The tract in question was covered by a homestead entry, valid at its inception, and uncanceled at the time the grant became effective; hence, under the ruling established by my predecessor in the case of Chalkley Thomas, the same would have been excepted from the operation of said grant, and subject to appropriation by Stainbrook. His entry was canceled, however, under a ruling of the land department in force at the date of adjudication, and on that point must be considered res adjudícala, and if the application had been based upon that ground, it must have been rejected. The application, however, was made under the provisions of the act of April 21, 1876, and was based upon the ground of an. entry-allowed under the rulings of the land department, and has been adjudicated in accordance therewith. In the adjudication of the application under the act above mentioned, the rule established in the Thomas case, viz., that an unimpeached homestead entry will be considered valid until canceled, will be followed.”

The decisions of the land department, having been so various, changeable and conflicting relative to the interpretation of the land grants' of congress and the rights of preemption and homestead settlers thereunder, cannot greatly guide us in reaching the true construction of the statute; much less can we regard such decisions as conclusive, or the decision of the secretary of the interior, in this case; as res adjudícala,. Further, we think the reinstatement of the Stainbrook entry under the provisions of the act of 1876 was a mistake of law,- as the title of the railroad company vested in the particular tract on June 30,1869, by the route of the road being then definitely fixed. This vested title could not be disturbed by a subsequent act of congress. (A. T. & S. F. Rld. Co. v. Bobb, ante, p. 673; Minter v. Crommelin, 18 How. 87; Reichart v. Felps, 6 Wall. 160; Morton v. Nebraska, 21 Wall. 660-675; Marquez v. Frisbie, 101 U.S. 473.)

The judgment of the district court will be reversed,, and the case remanded for further proceedings in accordance with the views herein stated.

All the Justices concurring.