United States v. Oregon & C. R.

143 F. 765, 75 C.C.A. 66, 1906 U.S. App. LEXIS 3775

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 5, 1906
• Docket: No. 1,213
• Status: Published

Opinion

ROSS, Circuit Judge,

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

It will be seen from the foregoing statement that Kelley filed his homestead claim to the land in question in the proper land office on the 2d day of March, 1865, and did not file his relinquishment thereof until November 21, 1867. The question in the case is not whether Congress had the power, during the life of that claim, to make other disposition of the land, for such power on its part, at any time prior to the time when, under the provisions of the homestead law, Kelley’s right should become absolute, may readily be conceded. The real question here is: Did Congress undertake to exercise such power by its act of July 25, 1866? the granting clause of which is as follows:

“See. 2. And be it further enacted, that there be, and hereby is, granted to the said companies, their successors and assigns, for the purpose of aiding in the construction of said railroad and telegraph line, and to secure the safe and speedy transportation of the mails, troops, munitions of war, and public stores over the line of said railroad, every alternate section of public land, not mineral, designated by odd numbers, to the amount of twenty alternate sections per mile (ten on each side) of said railroad line; and when any of said alternate sections or parts of sections shall be found to have been granted, sold, reserved, occupied by homestead settlers, preempted, or otherwise disposed of, other lands, designated as aforesaid, shall be selected by said companies in lieu thereof, under the direction of the Secretary of the Interior, in alternate sections designated by odd numbers as aforesaid, nearest to and not more than ten miles beyond the limits of said first-named alternate sections; and as soon as the said companies, or either of them, shall file in the office of the Secretary of the Interior a map of the survey of said railroad, or any portion thereof, not less than sixty continuous miles from either terminus, the Secretary of the Interior shall withdraw from sale public lands herein granted on each side of said railroad, so far as located and within the limits before specified. The lands herein granted shall be applied to the building of said road within the States, respectively, wherein they are situated. And the sections and parts of sections of land which shall remain in the United States within the limits of the aforesaid grant, shall not be sold for less than double the minimum price of public lands when sold: • Provided, that bona' fide and actual settlers under the pre-emption laws of the United States may, after due proof of settlement, improvement, and occupation, as now provided by law, purchase the same at the price fixed for said lands at the date of such settlement, improvement, and occupation: And provided, also, that settlers under the provisions of the homestead act, who comply with the terms and requirements of said act, shall be entitled, within the limits of said grant, to patents for an amount not exceeding eighty acres of the land so reserved by the United States, anything in this act to the contrary notwithstanding.”

What Congress granted by that act, and all that the appellee could acquire thereby, were certain sections of the “public land.” If the quarter section in question was then public land, the judgment of the court below was right, for it is agreed by the parties that it is embraced within the primary limits of the grant under which the appellee claims, and was freed of the homestead claim by Kelley’s relinquishment thereof before the time of the definite location of the appellee’s road. Northern Pacific Railway v. De Lacey, 174 U. S. 622, 19 Sup. Ct. 791, 43 L. Ed. 1111. The grant in question is one in prsesenti, and embraced only such lands as were “public land” at the time of the grant. That is manifest from the positive and affirmative words of the grant above quoted; and that it did not embrace any land to which there was then a valid homestead claim is further shown by the concluding provision of section 2 declaring:

“That settlers under the provisions of the homestead act who comply with the terms and requirements of said act, shall be entitled, within the limits of said grant, to patents for an amount not exceeding eighty acres of the land so reserved by the United States, anything in this act to the contrary notwithstanding.”

The agreed statement of facts shows that at the time of this grant by Congress there was on file in the proper land office an existing homestead claim thereto by Kelley, which could have ripened into a perfect title in him to the extent of any 80 acres thereof, by his compliance with the provisions of law in relation thereto.

In speaking of the act of Congress of July 2, 1864, c. 217, 13 Stat. 365, granting to the Northern Pacific Railroad Company certain sections of public land within certain defined limits, this court said, in the case of Amacker v. Northern Pacific Railroad Company, 15 U. S. App. 279, 282, 58 Fed. 850, 851, 7 C. C. A. 518, 541:

“The character of the grant to the company Is well defined. It Is one In prsesentl, but, as was said in St. Paul & Pacific Railroad Company v. Northern Pacific Railroad Company, 139 U. S. 1, 5, 11 Sup. Ct. 389, 390, 35 L. Ed. 77: ‘The grant was in the nature of a float, and the title did not attach to any specific sections until they were capable of identification; but, when once identified, the title attached to them as of the date of the grant, except as to such sections as were specifically reserved.’ In considering, therefore, what lands ultimately passed by the grant, there are two periods principally to be regarded; one the date of the granting act, the other the filing of the map of definite location of the road. Lands to which claims had attached at either period do not pass, though they were free from the claim at the other period. In Bardon v. Northern Pacific Railroad Company, 145 U. S. 535, 12 Sup. Ct. 856, 36 L. Ed. 806, a pre-emption claim existed at the date of the granting act, which, however, had been abandoned before the map of definite location was filed. It was held that it was not included in the grant. See, also, Hastings & Dakota Railroad Company v. Whitney, 132 U. S. 357, 10 Sup. Ct. 112, 33 L. Ed. 363. In Kansas Pacific Railway Company v. Dunmeyer, 113 U. S. 629, 5 Sup. Ct. 566, 28 L. Ed. 1122, a homestead entry was made after the date of the grant, but before the filing of the map of definite location, and it was held that the land was excepted from the grant”

The land in controversy in the case of Northern Pacific Railroad Company v. De Lacey, 174 U. S. 622, 19 Sup. Ct. 791, 43 L. Ed. 1111, was within the primary limits of both the grant made by Congress to the Northern Pacific Railroad Company July 2, 1864 (13 Stat. 365, c. 217) and the grant made by the joint resolution of May 31, 1870 (16 Stat. 378). The grant in the act of July 2, 1864, was of “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 definitely fixed, and a plat thereof filed in the office of the Commissioner of the General Land Office,” etc. In that case it was con- - tended that the land there in question was excepted from both of those grants because one John Flett had, on the 9th day of April, 1869, filed in the local land office a statement declaring his intention to purchase the land under the laws of the United States authorizing the pre-emption of unoffered land, which claim remained uncanceled at the time of the definite location of the company’s line of road. The Supreme Court held that, inasmuch as that claim of Flett filed on the 9th day of April, 1869, in the local land office, was alive at the time of the adoption of the resolution of May 31, 1870, the land was excepted from the operation of the grant contained in that resolution, but that, inasmuch as the right of Flett, under whom De Lacey claimed, was a right of preemption only, which ceased at the expiration of 30 months from the filing of his statement on the 9th day of April, 1869, in the local land office, because of the failure to make proof and payment within the time required by statute, there was no existing claim to the land at the time of the definite location of the company’s line of road, which was March 26, 1884, and therefore the land passed to the company under the grant of July 2, 1864; but the court said:

“If there had been a pre-emption claim at the time of the passage of the act of 1864, the land would not have passed under that grant” 174 U. S. 626, 19 Sup. Ct. 793, 43 L. Ed. 1111.

In view of the facts of that case, we do not think we would be justified in treating this utterance of the Supreme Court as obiter dictum, as the appellee contends that we should do. Giving it effect, and applying it to the facts of the present case, it is plain that the land in question was not embraced by the grant under which the appellee claims. Besides, we think the clause last quoted is in precise accord with the numerous decisions of the same court to the effect that no land is “public land,” within the meaning of such grants, to which there is at the time of the making thereof a live claim on the part of an individual under the homestead or pre-emption law, which has been recognized by the officers of the government, and has not ceased to be an existing claim. Cases supra, and Whitney v. Taylor, 158 U. S. 85, 94, 15 Sup. Ct. 796, 39 L. Ed. 906; Doolan v. Carr, 125 U. S. 618, 638, 8 Sup. Ct. 1228, 31 L. Ed. 844; Monroe Cattle Co. v. Becker, 147 U. S. 57, 13 Sup. Ct. 217, 37 L. Ed. 72; Leavenworth, etc., R. R. v. United States, 92 U. S. 733, 23 L. Ed. 634; Wilcox v. Jackson, 13 Pet. 498, 10 L. Ed. 264.

The judgment is reversed, and the cause remanded to the court below, with directions to enter judgment for the complainant as prayed for.