Kansas Pacific Railway Co. v. Culp

9 Kan. 38

Opinion

'The opinion of the court was delivered by

Brewer, J.:

Was the land in controversy subject to taxation, the one parcel for the year 1868, and the other for the year 1869 ? This is the only question presented by the record. The cases were tried in the district court upon an agreed statement of facts. The plaintiff derived title solely under the act of congress of July 1st 1862, and amendment •of July 2d 1864, granting aid in the construction of a railroad and telegraph line from the Missouri river to the Pacific Ocean. The agreed statement showed that plaintiff was the owner and in possession at the time of bringing the suit, and that the tax proceedings were regular and conformed to the requirements of the statute. It further showed “that at the time said land was assessed as aforesaid the plaintiff company .had completed the construction of the section of forty miles •of their road.within which the land lies, to the approval of the president of the United States.” And in- the case against -Culp the agreed facts showed that “ said plaintiff at the time .said land was assessed for taxation as aforesaid had -not paid into the treasury of the United States the cost of surveying, .selecting and conveying the said lands, and that no .patent therefor had been issued by the government of the U. S. to the said plaintiff; that said plaintiff had caused said lands to be valued and appraised, but that said land had not been .selected and conveyed as provided in said act of congress, nor the sum of one dollar per quarter-section paid, as provided; that said plaintiff had done all acts necessary to be done by it to obtain a patent for said land except as herein before stated.” This quotation from the agreed statement presents Ml the facts.

Was the land taxable ? If this land was the property of the Railroad Company, it was taxable; if it was the property of government it was not taxable. Act of Admission, § 3, clause 6th; General Tax Law, eh. 107, § 1. That no patent had issued is immaterial. Lands may be taxable before patent issues: Carroll v. Safford, 3 How., 441; Witherspoon v. Duncan, 4 Wall., 210; Stockdale v. Webster County, 12 Iowa., 536. The patent is evidence of the legal title. Where the right to a patent exists, the government holds the legal title only in trust, and the land is subject to taxation. Had the Railroad Company the right to a patent? If not, what had it to do first, and how did that affect its interest in the land? Sec. 3, of the act of July 1st 1862, provides—

“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, * * * every alternate section of public land, designated by odd numbers, to the amount of five (changed by the amendment of 1864 to ten) alternate sections per mile on each side of said railroad, on the line thereof, and within the limits of ten (changed by same amendment to twenty) 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 the road is definitely fixed; * * * and all such lands so granted by this section which shall not be sold or disposed of by said company within three years after the entire road shall have been completed shall be subject to settlement and pre-emption, like other lands, at a price not exceeding one dollar and twenty-five cents per acre, to be paid to said company.

“Sec. 4. That whenever said company shall have completed forty consecutive miles * * * the president of the United States shall appoint three commissioners to examine the same and report to him in relation thereto; and if it shall appear to him that forty consecutive miles of said railroad and telegraph line have been completed and equipped in all respects as required by this act, then, upon certificate-of said commissioners to that effect patents shall issue conveying the right and title to said lands. to said company, on each side of the road, as far as the same is completed, to the amount aforesaid, and patents shall in like manner issue as each forty miles of said railroad and telegraph line are completed, upon certificate of said commissioners.”

'The agreed statement shows that all the ju’erequisites to-the issue of a patent provided in this section have been performed, and if this were the only section bearing on the question the right to a patent would be clear. As against this right it is objected in the Culp case, first, that the company has not yet paid the one dollar per quarter-section required by the act of July 2d 1864. This is a general act applicable to all grants except those for agricultural colleges,, and requires the payment to the register and receiver of a fee of one dollar per quarter-section for each final location. We do not look upon this as attaching a new condition to the grant, a prerequisite to the vesting of title; but only as providing for payment for the evidence of such title. The title passes by the grant and the performance of the conditions named in the grant. To secure the evidence of suck transfer of title a fee must be paid to the officers who do the work, or a part of it, of preparing such evidence. ’ It is like the fee-paid to the conveyancer for drafting a deed, or to the notary for taking the acknowledgment, or to the register for recording the deed, none of which are paid for the title but only to-obtain and perpetuate the evidence of such title. All that the government receives for the land is the construction of the road. This done, its interest in the land ceases. It is no longer its property. The legal title it holds only in trust for the company, and that title it is ready to transfer upon payment of the expenses of making such transfer to the officers-who do the work. Again it is objected that the “cost of surveying, selecting and conveying tlie said land ” had not been paid into the treasury of the United States. This requirement is found in the 21st section of the act of July 2d 1864, which provides “that before any land granted by this act shall be conveyed -x- * * there shall first be paid into the treasury of the United States the cost of surveying, selecting and conveying the same by the said company or party in interest.” Substantially the same remarks are applicable here as upon the last point. By the very language of the section this payment is made, not a condition of the grant, but of the execution of the conveyance. The land granted shall not be conveyed. The right of the company to the land is secured by a performance of the conditions of the grant. The right to a patent or other proper conveyance only by the performance of certain additional requirements. The government after making the grant in effect says, Now if you wish the lines run, and the boundaries of the land granted determined, you must pay the expenses. It demands nothing more for the land, but declines to pay the expenses of making the boundaries and executing the conveyances. Again it is objected that the land had not been selected and conveyed, though it is admitted the plaintiff had valued and appraised it. The term “selection” is not an appropriate one. That carries the idea that the company was authorized to choose from a large body of land a certain number of acres; that the land to be conveyed depencfed on the choice of the company, and that until such choice no one could ascertain which sections would pass to the company and which remain with the government. We do not so understand the act. The location of the line of the road determined what lands were included in the grant as plainly as though named ’ by section, township and range. Every alternate section designated by odd numbers to the amount of ten alternate sections on each side of said railroad, and within the limits of twenty miles, except such as at the time of the location of said line of road the government had sold or guarantied to other, parties. All that was to be done embraced under the term “selection,” was to ascertain what lands within the limits described yet remained within the absolute control of the government. The grant is equivalent to a conveyance by an individual of all the land in a certain tract which he had not previously sold. Would not the title pass instantly upon such conveyance? Is there any selection to be made prior to the vesting of title in the grantee? The grantee may not know until after examination of the records what portion of the tract he takes under his conveyance, but his examination and ascertainment do not help to pass the title. The cases are parallel Again it is objected that “the title which the company is entitled to acquire, under the grant, is not an absolute and indefeasible estate.” The acts of congress containing this grant provide that all such lands remaining unsold, or undisposed of, by the said companies, three years after the entire road is completed, to aid in the construction of which the grants were made, shall be subject to settlement and pre-emption like other public lands at $1.25 per acre, “the money to be paid to said companies.” Counsel very elaborately and ingeniously discuss the difficulties which they suppose may arise in case the company shordd fail to sell within three years between the future pre-emptor and the holder of a tax-title. But what does the company’s deed eonvey unless it has the title? How can it sell that which it does not own? We do not understand that upon a failure by the company to sell within the three years the lands revert to £hc government, but simply that after such time the government will have the right to sell it at the ordinary prices of government land, paying the proceeds over to the company. The government receives nothing upon a sale made by it. It only acts as agent. The company is the principal and receives the money. The opinions of the Commissioner of the General Land Office and the Assistant Attorney General of the United States presented as arguments in this case are entirely imipplicable here, as they are based upon facts which by the agreed statement are excluded from our consideration.

In the case of the Railroad Company against Prescott the record presents the same questions as the case of the same plaintiff against Culp, except that it appears from the agreed statement that the cost of surveying, selecting and conveying the land in controversy had been paid at the time the tax proceedings were commenced. This therefore presents a stronger case for affirmance.

The judgment in each case will be affirmed.

All the Justices concurring.