Northern Lumber Co. v. O'Brien

139 F. 614, 71 C.C.A. 598, 1905 U.S. App. LEXIS 3910

• Court: Court of Appeals for the Eighth Circuit
• Decided: July 26, 1905
• Docket: No. 2,219
• Status: Published

Opinion

VAN DEVANTER, Circuit Judge,

after stating the case as above, delivered the opinion of the court.

The grant to the Northern Pacific Railroad Company was one in praesenti and was in terms confined to “public land.” St. Paul & Pacific R. R. Co. v. Northern Pacific R. R. Co., 139 U. S. 1, 5, 11 Sup. Ct. 389, 35 L. Ed. 77. Land not public at the date of the grant was not granted, even though it subsequently became of that character. Bardon v. Northern Pacific R. R. Co., 145 U. S. 535, 539, 12 Sup. Ct. 856, 36 L. Ed. 806; Northern Pacific Ry. Co. v. De Lacey, 174 U. S. 622, 626, 19 Sup. Ct. 791, 43 L. Ed. 1111; United States v. Southern Pacific R. R. Co., 146 U. S. 570, 594, 606, 13 Sup. Ct. 152, 36 L. Ed. 1091. The words “public land” have long had a settled meaning in the legislation of Congress, and, when a different intention is not clearly expressed, are used to .designate such land as is subject to sale or other disposal under general laws, but not such as is reserved by competent authority for any purpose or in any manner, although no exception of it is made. Bardon v. Northern Pacific R. R. Co., supra; Wilcox v. McConnell, 13 Pet. 498, 513, 10 L. Ed. 264; Leavenworth, etc., R. R. v. United States, 92 U. S. 733, 741, 745, 23 L. Ed. 634; Newhall v. Sanger, 92 , 23 L. Ed. 769; Doolan v. Carr, 125 U. S. 618, 630, 8 Sup. Ct. 1228, 31 L. Ed. 844; Cameron v. United States, 148 U. S. 301, 309, 13 Sup. Ct. 595, 37 L. Ed. 459; Mann v. Tacoma Land Co., 153 U. S. 273, 284, 14 Sup. Ct. 820, 38 L. Ed. 714; Barker v. Harvey. 181 U. S. 481, 490, 21 Sup. Ct. 690, 45 L. Ed. 963; Scott v. Carew, 196 U. S. 100, 109, 25 Sup. Ct. 193, 49 L. Ed. 403. From the time of the earliest railroad land grants it was the practice^ of the chief officers of the Land Department, to whom was committed the administration of such grants, to withdraw from settlement, entry, and sale the public lands along the line or route of the road so aided, in advance of its definite location, in order that the lands might be preserved for the ultimate satisfaction of the grant. Such withdrawals, where not made in opposition to the terms of the grant or other congressional enactment, have been uniformly declared to be reservations made by competent authority and to be efficient to remove the lands therein from the category of public land and to exclude them from subsequent railroad land grants containing no clear declaration of an intention to include them; and this,_ even though it subsequently transpired that the withdrawal was ill-advised, or that the lands therein were not required for the satisfaction of the grant. Wolcott v. Des Moines Company, 5 Wall. 681, 688, 18 L. Ed. 689; Riley v. Welles, 154 U. S. 578, 14 Sup. Ct. 1166, 19 L. Ed. 648; Wolsey v. Chapman, 101 U. S. 755, 768, 25 L. Ed. 915; Wisconsin Central R. R. Co. v. Forsythe, 159 U. S. 46, 54, 55, 15 Sup. Ct. 1020, 40 L. Ed. 71; Spencer v. McDougal, 159 U. S. 62, 15 Sup. Ct. 1026, 40 L. Ed. 76; Northern Pacific R. R. Co. v. Musser-Sauntry Co., 168 U. S. 604, 607, 18 Sup. Ct. 205, 42 L. Ed. 596.

The application of these fixed rules of decision to the facts of the present case sustains the holding of the Circuit Court and requires that its decree be affirmed. At the date of the grant to the Northern Pacific Railroad Company the land now in controversy was embraced in a subsisting withdrawal made by the Commissioner of the General Land Office, with the approval of the Secretary of the Interior, for the purpose of preserving the land for the satisfaction of a prior grant in aid of the construction of another railroad, the provisional location of which, as shown upon the accepted map of its general route, indicated that the land would probably fall within the place limits of that grant, and would be required for its satisfaction. The withdrawal was not made in opposition to the terms of the prior grant or of any other congressional enactment, and there is nothing in the subsequent grant to the Northern Pacific Railroad Company indicative of an intent on the part of Congress to use the words, “public land” therein in a sense which would embrace lands at that time withdrawn or reserved for the protection of a prior grant. In short, the subsequent grant, being in prassenti and confined to public land, did not embrace the land now in controversy, because it was then excluded from the category of public land by reason of the subsisting withdrawal or reservation. It is true that, after the date of the grant to the Northern Pacific Railroad Company and before the definite location of the line of that company’s road, the land was released from the withdrawal,- and thereupon became public in the fullest sense of the term; but this did not place it within the operation of a preceding grant in praesenti confined to land then public. The release simply restored it to the public domain and subjected it to future disposal under any law then applicable to it. The decision of the Supreme Court in Bardon v. Northern Pacific Railroad Co., supra, is conclusive on this point. The land there in controversy was part of an odd-numbered section, not mineral, within the place limits of the grant to the Northern Pacific Railroad Company made by the act of July 2, 1864 (13 Stat. 365, c. 217), and to which the United States had 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 that company’s road was definitely fixed; but it was not “public land,” within the usual and settled meaning of that term at the date of the grant. It was then covered by a subsisting preemption entry theretofore wrongfully allowed without proof of the pre-emptor’s compliance with the law. Shortly thereafter, and before the line of road was definitely fixed, the entry was canceled by the Commissioner of the General Land Office because of the absence of such proof, and the money theretofore paid on the entry was refunded by the government. There, as in the present case, it was contended that the status of the land at the date when the line of road was definitely fixed was the only criterion in determining whether or not it passed to the railroad company under the grant. In holding otherwise the court said (page 538 of 145 U. S., page 857 of 12 Sup. Ct. [36 L. Ed. 806]) :

“It is thus seen that when the grant to the Northern Pacific Railroad Company was made, on the 2d of July, 1864, the premises in controversy had been taken up on the pre-emption claim of Robinson, and that the pre-emption entry made was uncanceled; that by such pre-emption entry the land was not at the time a part of the public lands, and that no interest therein passed to that company. The grant is of alternate sections of public land, and by public land, as it has been long settled, is meant such land as is open to sale or other disposition under general laws. All land, to which any claims or rights of others have attached, does not fall within the designation of ‘public land.’ The statute also says that whenever, prior to the definite location of the route of the road, and of course prior to the grant made, any of the lands which would otherwise fall within it have been granted, sold, reserved, occupied by homestead settlers, or pre-empted or otherwise disposed of, other lands are to be selected in lieu thereof under the direction of the Secretary of the Interior. There would therefore be no question that the preemption entry by the heirs of Robinson, the payment of the sums due to the government having been made, as the law allowed, by them after his death, took the land from the operation'of the subsequent grant to the Northern Pacific Railroad Company, if the pre-emption entry had not been subsequently canceled. But such cancellation had not been made when the act of Congress granting land to the Northern Pacific Railroad Company was passed. It was made more than a year afterwards. As the land pre-empted then stood on the records of the Land Department, it was severed from the mass of public lands, and the subsequent cancellation of the pre-emption entry did not restore it to the public domain, so as to bring it under the operation of previous legislation, which applied at the time to land then public. The cancellation only brought it within the category of public land in reference to future legislation. This, as we think, has long been the settled doctrine of this court.”

And referring to the case of Leavenworth, etc., R. R. Co. v. United States, supra, in which a claim to lands under a railroad land grant was rejected where the lands were within an Indian reservation at the date of the grant, but at the date of the definite location of tlie line of the road had become public land in the proper sense of the term by reason of the termination of the reservation, it was also said (page 543 of 145 U. S., page 859 of 12 Sup. Ct. [36 L. Ed. 806]) :

“Three justices, of whom the writer of this opinion was one, dissented from the majority of the court in the Leavenworth Case; but the decision has been uniformly adhered to since its announcement, and this writer, after a much larger experience in the consideration of public land grants since that time, now readily concedes that the rule of construction adopted, that in the absence of any express provision indicating otherwise a grant of public lands only applies to lands which are at the time free from existing claims, is better and safer, both to the government and to private parties, than the rule which would pass the property subject to the liens and claims of others. The latter construction would open a wide field of litigation between the grantees and third parties.”

Upon the filing and acceptance of the map showing the general route of its railroad the Lake Superior & Mississippi Railroad Company acquired an inchoate right to the odd-numbered sections public at the date of the grant of May 5,1864, within the prescribed limits on each side of that route, and thereupon the land officers, anticipating that the line of definite location would substantially conform to the general route, withdrew these sections from pre-emption, settlement, and sale, thus placing them in a state of reservation for the benefit of that company and removing them from the category of public land. Such was the status of the land now in controversy when the grant was made to the Northern Pacific Railroad Company. Had the line of definite location of the Lake Superior & Mississippi Railroad as subsequently established conformed to the line of its general route sufficiently to have brought the land within the place limits of the grant in aid of that road, there would be no question that the Lake Superior Ik Mississippi Railroad Company would thereupon have acquired a vested right to the land, as of the date of that grant, and that the same would not be within the operation of the grant to the Northern Pacific Railroad Company. Northern Pacific R. R. Co. v. Musser-Sauntry Co., 168 U. S. 604, 611, 18 Sup. Ct. 205, 42 L. Ed. 596; St. Paul & Pacific R. R. Co. v. Northern Pacific R. R. Co., 139 U. S. 1, 17, 11 Sup. Ct. 389, 35 L. Ed. 77; United States v. Southern Pacific R. R. Co., 146 U. S. 570, 595, 13 Sup. Ct. 152, 36 L. Ed. 1091. As, however, the line of definite location of the Lake Superior & Mississippi Railroad departed materially from the general route, no title to the land vested in the Lake Superior & Mississippi Railroad Company, and the withdrawal or reservation was modified accordingly; but these matters, occurring subsequently to the grant to the Northern Pacific Railroad Company, and therefore after the time in respect of which that grant must operate as one in praesenti, if at all, are without any bearing upon the decision of the present case, unless, as before indicated, there is something in the granting act clearly indicative of an intent on the part of Congress to depart from the settled meaning of the words “public land” and to use them in a sense which would embrace lands then withdrawn and reserved for the satisfaction of a prior grant in aid of another railroad. Not only is there nothing in the act of July 2, 1864, indicative of such intent, but the clear import of the first proviso to section 3, supra, is that there was none. United States v. Southern Pacific R. R. Co., 146 U. S. 570, 605, 13 Sup. Ct. 152, 36 L. Ed. 1091.

The reliance of counsel for the appellant seems to be on the cases of Northern Pacific R. R. Co. v. Sanders, 166 U. S. 620, 17 Sup. Ct. 671, 41 L. Ed. 1139; Menotti v. Dillon, 167 U. S. 703, 17 Sup. Ct. 945, 42 L. Ed. 333; Nelson v. Northern Pacific Ry. Co., 188 U. S. 108, 23 Sup. Ct. 302, 47 L. Ed. 406; and United States v. Oregon & California R. R. Co., 176 U. S. 28, 20 Sup. Ct. 261, 44 L. Ed. 358. None of these cases has particular reference to or makes the decision turn upon the clause, “there be, and hereby is, granted * * * every alternate section of public land,” which makes the grant one in praesenti of land then public, but instead each has particlar reference to and makes the decision turn upon the limitation on the granting clause, which makes it also requisite that “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 definitely fixed.” They all recognize the well-established rule, that the grantee under a railroad land grant acquires, by designating the general route of its road,, only an inchoate right to the odd-numbered sections granted by Congress, and that until the definite location of the road these sections remain within the disposing power of Congress, and this, even-though they be withdrawn for the protection of the grant, as in the-present case; but*there is nothing in this which is inconsistent with the rule, equally well established, that an intent to supersede such a withdrawal and to make other disposition of the lands covered thereby is not deducible from subsequent legislation relating to-“public land,” unless it contains something to indicate that that term is used otherwise than according to its settled meaning. This is made clear in Menotti v. Dillon, where it was said (page 719 of 167 U. S., page 950 of 17 Sup. Ct. [42 L. Ed. 333]) :

“It is said that the railroad company filed its map of general route on the 8th day of December, 18G4, and that, these lands having been withdrawn from, pre-emption, private entry, and sale by the executive order of January 30, 1865, they were not embraced by the act of 1866. In our opinion this is not a proper interpretation of that act. The proviso of the first section distinctly indicates certain cases to which the act should not apply; and, distinctly excluding those cases, but no others, from its operation, the act, in express-words, confirmed to the state, ‘in all cases,’ lands which the state had theretofore selected in satisfaction of any grant by Congress and sold to purchasers in good faith under its laws.”

In this connection it may be properly observed that the same-rule which defeats the appellant in the present case was applied in favor of its grantor, the Northern Pacific Railroad Company, as much as 14 years ago, in St. Paul & Pacific R. R. Co. v. Northern Pacific R. R. Co., 139 U. S. 1, 17, 11 Sup. Ct. 389, 394, 35 L. Ed. 77, where it was said;

“Besides, the withdrawal made by the Secretary of the Interior of lands within the 40-mile limit, on the 13th of August, 1870, preserved the lands for the benefit of the Northern Pacific Railroad from the operation of any subsequent grants to other companies not specifically declared to cover the premises.”

The very earnest contention of learned counsel for the appellant that the question presented in this case is identical with that determined by the Supreme Court in United States v. Oregon & California R. R. Co., supra, justifies a somewhat extended statement respecting that case. Primarily the controversy arose out of a claimed conflict between the grant made to the Northern Pacific Railroad Company by the act of July 2, 1864, and the grant to the Oregon & California Railroad Company made by the act of July 25,1866 (14 Stat. 239, c. 242). March 6,1865, Josiah Perham, president of the Northern Pacific Railroad Company, addressed to the Secretary of the Interior a communication transmitting to that officer a map said to designate the general route of the Northern Pacific Railroad, and requested that it be filed in the office of the Commissioner of the General Land Office, and that an order of withdrawal be made of the lands along the route designated. The map was not accepted, because not sufficient as a map of general route, and no order of withdrawal was made thereon; nor was there ever any definite location or construction of the Northern Pacific Railroad opposite to the lands in suit. The road of the Oregon & California Railroad Company was definitely located and constructed, and the lands within the area of the claimed conflict were patented to it. Subsequently Act Sept. 29, 1890, c. 1040, 26 Stat. 496 [U. S. Comp. St. 1901, p. 1598], forfeited to the United States all lands theretofore granted to any corporation to aid in the construction of a railroad which were opposite to and coterminous with the portion of such railroad not then completed and in operation. The purpose of the suit was to cancel the patents issued to the Oregon & California Railroad Company for the lands within the area claimed to be in conflict; the contention of the government being that the patents were issued without authority of law. It was stated in the opinion:

“This contention rests upon the assumption that the lands so patented, although within the limits of the grant contained in the act of July 25, 1866, and within the line of the Oregon Company as definitely located, were excluded from that grant because included in the grant previously made to the Northern Pacific Railroad Company by the act of July 2, 1864, * * * in which case it is insisted that they were forfeited to the United States by the act of September 29, 1890, * * * and should be so adjudged.”

The opinion does not disclose any contention on the part of the government that the grant of July 25, 1866, being one in prassenti and confined to public land, did not include the lands in controversy, because then withdrawn or reserved for the benefit of the prior grant. To the contrary it is said:

“The contention of the government renders it necessary to ascertain what interest, if any, was acquired by the Northern Pacific Railroad Company in these lands by virtue of the act of July 2,1864.”

Then, after stating that the grant made by that act was in the nature of a “float,” no right or title to any particular section becoming “certain” until a definite location of the line of road, it was further said :

“If, therefore, the Perham map of 1805 were conceded, for the purpose of the present discussion, to have, been sufficient as a map of ‘general route’ — and nothing more can possibly be claimed for it — these lands could not be regarded as having been brought by that map (even if it had been accepted) within the grant to the Northern Pacific Railroad Company, and thereby have become so segregated from the public domain as to preclude the possibility of their being earned by other railroad companies under statutes enacted by Congress after the filing of that map and before any definite location by the company of its line.”

An extended reference to decided cases, particularly to Northern Pacific R. R. Co. v. Sanders and Menotti v. Dillon, supra, was then made, in the course of which it was declared that a general statement'in Buttz v. Northern Pacific R. R. Co., 119 U. S. 55, 72, 7 Sup. Ct. 100, 30 L. Ed. 330, to the effect that, upon the designation of the general route of the Northern Pacific Railroad, “the law withdraws” the odd-numbered sections within the prescribed limits for the protection of the grant, was too broad, if intended to convey the thought that the designation of such route would prevent these sections from being granted by Congress to, and from being earned by, another railroad corporation prior to the definite location of the line of road. It was then said:

“As the grant contained in the act of July 2, 1864, did not include any lands that had been reserved, sold,, granted, or otherwise appropriated at the time the line of the Northern Pacific Railroad was ‘definitely fixed’; as the route of the Northern Pacific Railroad had not been definitely fixed at the time the act of July 25, 1866, was passed, or when the line of the Oregon Company was definitely located; as the lands in dispute are within the limits of the grant contained in the act of 1866; as the route of the Oregon Railroad was definitely fixed, at least when the map showing that route was accepted by the Secretary of the Interior on the 29th day of January, 1870, the Northern Pacific Railroad Company having done nothing prior to the latter date except to file the Perham map of 1865; and as prior to the forfeiture act of September 29, 1890, there had not been any definite location of the Northern Pacific Railroad opposite the lands in dispute — there is no escape from the conclusion that these lands were lawfully earned by the Oregon Company and were rightly patented to it”

In a later case, United States v. Northern Pacific R. R. Co., 193 U. S. 1, 7, 24 Sup. Ct. 330, 48 L. Ed. 593, the question was presented as to what effect had been and should be given to the Per-ham map, and therefore as to what was decided in the former case, and it was said:

“In United States v. Oregon & California R. R. Co., supra, it was held that, if the Perham map were valid as a map of general route, it did not operate as a reservation.”

As no withdrawal was made by the officers of the Land Department along the route attempted to’ be designated by that map, and as the map did not of itself operate as a reservation, it follows that at the date of the grant of July 25, 1866, the lands in suit were not withdrawn or reserved for the benefit of the prior grant, but remained within the category of public land. The case chiefly relied upon is therefore clearly distinguishable from the present one. The ultimate question decided in that case, as is indicated by the extracts before quoted from the opinion, was whether the grant of July 2, 1864, of itself excluded the lands in suit from the grant of July 25, 1866. Of course it did not. It did not identify them as within the limits of the grant, and, there being no definite location of the line of road opposite to them, they were never so identified.

The decree is affirmed.