Lake, Ch. J.
Whenever the question of right to land under the act of congress, through which the defendant company here [288]*288claims title, or others of similar import, has been considered by the supreme court of the United States, the holding in effect has been that the grant is of a present interest, and effective as against all adverse claimants immediately upon and from a precise designation thereof, which designation is accomplished either by a definite location of the line of the road upon the ground, or through a'specific selection by numbers. And further, that where latteral limits are given within which the grant is to operate, as in that made to the Union Pacific Railroad Company, and in most of the others giving like aid, no specific selection by numbers is requisite, the definite location of the track being sufficient. R. R. Co. v. Fremont County, 9 Wall, 89. Mis., Kan. & Texas Railway Co. v. Kansas & Pacific Railway Co, 7 Otto, 498. United States v. B. & M. R. R. Co., 8 Id., 334. Ryan v. R. R. Co., 9 Id., 382.
The reason for the rule that no specific designation by numbers is necessary, and that the mere location of the line of the road upon the ground will suffice in those cases where definite latteral bounds are set to the grant evidently is that, inasmuch as all of the lands, or rather all of the odd numbered sections within the designated limits, even if none have been previously disposed of, are required to satisfy the donation, there is no want of certainty as to what the grant was intended to cover. It would be difficult indeed, if not impossible, to devise a more certain and unmistakable designation of lands than one which, in general terms, mentions all of the odd numbered sections on both sides and within a specified distance from the center line of a road.
As construed in the case of the United States v. B. & M. R. R. Co., supra, the grant in question is without definite latteral limits. No particular selection of the land in controversy by numbers was made by the company, at least not until it was entered as a homestead by the [289]*289plaintiff in May, 1871. The location of the company’s road was definitely fixed on the 15th day of June, 1865. Therefore, conformably with the decisions made in the cases cited above, if the grant of the ten alternate sections per mile had been in terms limited to the distance of twenty miles on each side of the track — the land in controversy being within that distance — no doubt whatever could be entertained that the right of the company definitely attached to it immediately upon such location, thus antedating the plaintiff’s claim by nearly six years,
The case of the United States v. B. & M. R. R., Co., supra, concerned the title of lands selected by this defendant to supply a deficiency claimed to exist in the lands described in the grant, within twenty miles of the road, in consequence of sales made by the government prior to its definite location. As to these deficiency lands, it is doubtless true, that no right attached in favor of the company until definite selections by numbers were made, there being no other available means of designating them, or knowing,that they were claimed under the grant. But, as to any of the lands lying within twenty miles of the center line of the road, no such necessity existed. By the terms of the grant, “every alternate section of public land (excepting mineral lands as provided in this act,) designated by odd numbers, to the amount of ten alternate sections per mile, on each side of the road, and the line thereof,” etc., is given.
By this language it must have been intended, if not actually to restrict the grant within the distance of twenty contiguous sections, or miles, on each side of the line of the road, at least that the lands be taken as near that line as possible. It certainly could not have been the intention of congress that available lands within the distance of twenty miles might be refused, and their place filled by selections from the body of public lands beyond [290]*290that distance. If this be so, then, as all of the lands within the distance of twenty sections, at least, were required to make up the quantity to which the company was entitled, does it not follow that, to this extent, the designation was just as certain upon the location of the road as it would have been by an express limitation, in the most positive terms, to that distance ? It seems to us that it was. Therefore, as to all of the odd numbered sections within twenty miles of the line of the road, we see no reason for a rule different from that which governs in those cases where express latteral limits are given. There is equal certainty, and the principles involved seem to be the same in both cases.
Por these reasons we conclude that the defendant’s title through its patent from the United States is good; and, having its inception, by relation, on the 15th day of June, 1865, when the line of the road was definitely fixed, it necessarily follows that the patent issued to the plaintiff, in virtue of his settlement in May, 1871, is void, and confers no right whatever-to the land. The previous settlement made by Samuel G. Bingamon in October, 1865, under the homestead law, has no bearing whatever on the case. This settlement also was subsequent to the time when the defendant’s right attached, and did not affect it.
One other question remains to be considered. It is whether the plaintiff is entitled to the benefit of the “act for the relief of occupying claimants.” Comp. Stat., Chap. 63.
It appears that on the 2nd day of October, 1873, after a decision adversely to him by the land department, the plaintiff applied for and took a contract in writing from the defendant for the sale to him of the land in controversy, on a 10 years credit, and paid one years interest on the agreed consideration in advance. This and the interest for the two succeeding years, in all the sum of $259.45, was all [291]*291that he paid on the contract; as to all other payments and requirements therein provided for he refused further performance. The particular terms of this contract, save the conditions of forfeiture, are not •essential to the present inquiry and need not be mentioned.
The conditions of forfeiture were, in substance, that if Yance failed to make the agreed payments, or any of them, punctually, or to pay the taxes assessed against the land as they became due, or, in fact, to perform any of the other agreements and- stipulations by him to be performed, then the contract, to the extent that it bound the company, was to become “null and void,” and all rights and interests thereby created in favor of Yance were to “utterly cease and determine, and the right of possession, and all equitable and legal interests in the premises,” should revert to the company, “without any declaration of forfeiture or act of re-entry, or any other act of the” company “to be performed;” and without ■any right “ of reclamation or compensation for moneys paid, or services performed, as absolutely, fully and perfectly as if this contract had never been made.
Free access — add to your briefcase to read the full text and ask questions with AI
Lake, Ch. J.
Whenever the question of right to land under the act of congress, through which the defendant company here [288]*288claims title, or others of similar import, has been considered by the supreme court of the United States, the holding in effect has been that the grant is of a present interest, and effective as against all adverse claimants immediately upon and from a precise designation thereof, which designation is accomplished either by a definite location of the line of the road upon the ground, or through a'specific selection by numbers. And further, that where latteral limits are given within which the grant is to operate, as in that made to the Union Pacific Railroad Company, and in most of the others giving like aid, no specific selection by numbers is requisite, the definite location of the track being sufficient. R. R. Co. v. Fremont County, 9 Wall, 89. Mis., Kan. & Texas Railway Co. v. Kansas & Pacific Railway Co, 7 Otto, 498. United States v. B. & M. R. R. Co., 8 Id., 334. Ryan v. R. R. Co., 9 Id., 382.
The reason for the rule that no specific designation by numbers is necessary, and that the mere location of the line of the road upon the ground will suffice in those cases where definite latteral bounds are set to the grant evidently is that, inasmuch as all of the lands, or rather all of the odd numbered sections within the designated limits, even if none have been previously disposed of, are required to satisfy the donation, there is no want of certainty as to what the grant was intended to cover. It would be difficult indeed, if not impossible, to devise a more certain and unmistakable designation of lands than one which, in general terms, mentions all of the odd numbered sections on both sides and within a specified distance from the center line of a road.
As construed in the case of the United States v. B. & M. R. R. Co., supra, the grant in question is without definite latteral limits. No particular selection of the land in controversy by numbers was made by the company, at least not until it was entered as a homestead by the [289]*289plaintiff in May, 1871. The location of the company’s road was definitely fixed on the 15th day of June, 1865. Therefore, conformably with the decisions made in the cases cited above, if the grant of the ten alternate sections per mile had been in terms limited to the distance of twenty miles on each side of the track — the land in controversy being within that distance — no doubt whatever could be entertained that the right of the company definitely attached to it immediately upon such location, thus antedating the plaintiff’s claim by nearly six years,
The case of the United States v. B. & M. R. R., Co., supra, concerned the title of lands selected by this defendant to supply a deficiency claimed to exist in the lands described in the grant, within twenty miles of the road, in consequence of sales made by the government prior to its definite location. As to these deficiency lands, it is doubtless true, that no right attached in favor of the company until definite selections by numbers were made, there being no other available means of designating them, or knowing,that they were claimed under the grant. But, as to any of the lands lying within twenty miles of the center line of the road, no such necessity existed. By the terms of the grant, “every alternate section of public land (excepting mineral lands as provided in this act,) designated by odd numbers, to the amount of ten alternate sections per mile, on each side of the road, and the line thereof,” etc., is given.
By this language it must have been intended, if not actually to restrict the grant within the distance of twenty contiguous sections, or miles, on each side of the line of the road, at least that the lands be taken as near that line as possible. It certainly could not have been the intention of congress that available lands within the distance of twenty miles might be refused, and their place filled by selections from the body of public lands beyond [290]*290that distance. If this be so, then, as all of the lands within the distance of twenty sections, at least, were required to make up the quantity to which the company was entitled, does it not follow that, to this extent, the designation was just as certain upon the location of the road as it would have been by an express limitation, in the most positive terms, to that distance ? It seems to us that it was. Therefore, as to all of the odd numbered sections within twenty miles of the line of the road, we see no reason for a rule different from that which governs in those cases where express latteral limits are given. There is equal certainty, and the principles involved seem to be the same in both cases.
Por these reasons we conclude that the defendant’s title through its patent from the United States is good; and, having its inception, by relation, on the 15th day of June, 1865, when the line of the road was definitely fixed, it necessarily follows that the patent issued to the plaintiff, in virtue of his settlement in May, 1871, is void, and confers no right whatever-to the land. The previous settlement made by Samuel G. Bingamon in October, 1865, under the homestead law, has no bearing whatever on the case. This settlement also was subsequent to the time when the defendant’s right attached, and did not affect it.
One other question remains to be considered. It is whether the plaintiff is entitled to the benefit of the “act for the relief of occupying claimants.” Comp. Stat., Chap. 63.
It appears that on the 2nd day of October, 1873, after a decision adversely to him by the land department, the plaintiff applied for and took a contract in writing from the defendant for the sale to him of the land in controversy, on a 10 years credit, and paid one years interest on the agreed consideration in advance. This and the interest for the two succeeding years, in all the sum of $259.45, was all [291]*291that he paid on the contract; as to all other payments and requirements therein provided for he refused further performance. The particular terms of this contract, save the conditions of forfeiture, are not •essential to the present inquiry and need not be mentioned.
The conditions of forfeiture were, in substance, that if Yance failed to make the agreed payments, or any of them, punctually, or to pay the taxes assessed against the land as they became due, or, in fact, to perform any of the other agreements and- stipulations by him to be performed, then the contract, to the extent that it bound the company, was to become “null and void,” and all rights and interests thereby created in favor of Yance were to “utterly cease and determine, and the right of possession, and all equitable and legal interests in the premises,” should revert to the company, “without any declaration of forfeiture or act of re-entry, or any other act of the” company “to be performed;” and without ■any right “ of reclamation or compensation for moneys paid, or services performed, as absolutely, fully and perfectly as if this contract had never been made. And said party of the first part,” the company, “ shall have the right, immediately upon the failure of the party of the second part,” Yance, “ to comply with the stipulations of this contract, to enter upon the land aforesaid, and take immediate possession thereof, together with the improvements and appurtenances thereto belonging,” And Yance ■further agreed that thereupon he would “ surrender unto the said party of the first part the said land and appurtenances,” and that no court should relieve him from the •effects of “ a failure to comply strictly with this contract.” In short, the contract is one wherein the rights of the respective parties are set out with great particularity, and the privilege of the company to declare a forfeiture against the grantee for the non-performance of [292]*292certain’conditions, is as clearly expressed as is possible. There is no pretense that the contract is at all affected by either fraud or mistake in the making of it, and the only ground upon which the appellant seeks to break the-full force of its provisions is that, as he alleges in his-petition, there was an accompanying oral agreement, made by the company to the effect that, “ said written contract should not estop, prevent, or interfere with plaintiff,” (Vance,) “ to further prosecute his claim to-said land under his said homestead entry thereof, but that said plaintiff should be free to prosecute the same as fully in all respects as though said written contract to purchase said land had not been made by said plaintiff;” and that if Vance finally succeeded in obtaining a reversal of the decision against him, “either by the commissioner or in the courts, the said defendant agreed to repay to plaintiff all moneys, with interest from the time-of payment, then or thereafter paid by him on said contract,” * * * and “that said written contract should, on obtaining-such reversal of the land commissioner’s decision, be no longer in force, but should then be deemed rescinded and void. ”
In the answer of the defendant all of these allegations, respecting this oral agreement, are denied, and the judgment of the district court is that it was not made. And the finding upon this point is clearly supported by the evidence, as we think.
To support his averments respecting such agreement, Vance himself testified in substance that at the time of his purchase of the land he “went into the railroad land office, and Mr. McFarland,” who acted for the company as its agent, “was alone; it was about dinner time. I acknowledged frankly to McFarland that I was beat on the appeal by the secretary of the interior’s decision, but I told him at the time that I had full faith in the government, that the decision would be reversed, and asked [293]*293him providing I paid him money in order to secure the land, whether in case of a reversal of this decision I could recover the money I paid them; he told me most ■certainly I could, the company was honorable, and they would refund the money in case I procured a reversal of the decision. On the strength of that I purchased the land.”
Yance further testified that: “.When I received notice ■of my re-instatement, I called on McFarland and refreshed his memory in regard to the promise made tome ; he told me this: ‘You entered into the contract and I will refund you your principal.’ I objected to that, and told him there was interest coming to me. I thought •there was interest coming to me on this money lying in their office. We split on that. He told me, ‘Any time you fetch in your contract and surrender it I will refund you your principal.’ At the time the contract wks made that was the understanding. I was to surrender the contract in casq of reversal, that was my understanding.”
Opposed to this there is the testimony of McFarland, who says: “Mr. Yance’s recollection of that conversation and my own are different. Mr. Yance came as he .states, and said his homestead entry had been finally can-celled, as I already knew'. He was anxious to secure the land in some way, and we were quite willing he should have the first opportunity to buy it. We agreed upon the price, on ten years credit, nine dollars per acre, and he paid one payment of interest. He asked me the question, as I now remember, in case we failed to secure the title — in case the company failed to secure title to the land — would we refund the money he was then paying. I -fold him it certainly would. That is the substance of the ■conversation, as I now remember it. I don’t think there was any talk at all about prosecuting his claim any further before the department. He may have had such an intention, but I don’t think he mentioned it there.”
[294]*294And in answer to the question “whether there was any promise made to refund to him in case he got a patent to-the land,” this witness further testified: “No sir, there was not. I told him if we failed to give title, couldn’t give title to him, we would refund the money, and save any controversy on that point.”
And on his cross examination in answer to the question, “did you ever offer to pay this money back to Mr, Yance? ” he said, “ No sir, never did, except in one respect. Mr. Yance came into our office at one time, I don’t remember what date it was, it was when he had got title to his land, and he asked his money back. I told him he was not entitled to any money under the arrangement, made with me. I did not look at his account. I presumed he had paid some of the principal on the contract. I said to him if he did not want to carry out the contract, if he wanted to stand on his homestead entry, to bring in his contract and we would pay him back any principal he. had paid. He brought the contract in at a subsequent date; at that time I looked up his account and found he. had paid no principal at all, and I refused to pay him any principal.” * * * “ I told him if he thought his-title better than ours to bring in his contract, and we. would pay him back any principal he had paid.”
From the foregoing, which is the substance of all the* evidence there is on the subject, it must be apparent that, the allegations of the petition as to the oral agreement are-not proved. And, as before stated, so the trial court, found; the finding being expressed in these words: “And the court do further find, in response to plaintiff’s request, that, as matter of fact, at the time of the making of the land contract between the defendant company and the-plaintiff, it was agreed by the said company, by J. D,, McFarland, its duly constituted agent, that in case the saicf company failed to perfect its title to the said land, the said company would claim no right under said con[295]*295tract against the said plaintiff, and that said agreement was a verbal one, and was not included in the written contract of purchase. And'the court do further find that said defendant company did not fail to perfect its title to said land, but on the contrary has fully perfected the same.” And the consideration of the court consequently was that, as to Yance, the written contract, with all of its provisions respecting the payment of the purchase money, taxes, etc., and as to forfeitures for non-payment at the option of the company, remained in full force. Such being the adjudged relation of Yance to the railroad company respecting this land, is he in an .attitude which entitles him, upon eviction for forfeiture, to relief as an occupying claimant ?
The cases in which such relief may be afforded are all mentioned in the first section of the act, and are as follows : First. “When any occupying claimant, being in quiet possession of any lands, or tenements, for which such person can show a plain and connected title, in law or equity, derived from the records of some public office;” Second. “Or being in quiet possession of, and holding the same by deed, devise, descent, contract, bond or agreement, from and under any person claiming title as aforesaid derived from the records of some public office, or by deed duly authenticated and recorded;” Third. “Or by being in quiet possession of, and holding the same under sale on execution against any person claiming title as aforesaid, derived from the records of some public office, or by deed duly authenticated and recorded;” Fowrth. “Or being in possession of, and holding any land under any sale for taxes authorized by the laws of this state, or the laws of the territory of Nebraska;” Fifth. “Or any person in quiet possession of any land, claiming title thereto, and holding the same in good faith under a deed of sale made by executors, administrators, or guardians, or by any other person or persons, in pursuance of any [296]*296order of court, or decree in chancery, where lands are, or have been directed to be sold, and the purchaser or purchasers thereof have obtained the title thereto, and possession of the same, without any fraud or collusion on his, her, or their part.” Any person falling within the description of either one of these five classes, the law declares, “shall not be evicted, or turned out of possession by any person, or persons, who shall set up and prove an adverse and better title to said lands, until said occupying claimant, his, her, or their heirs, shall be fully paid the value of all lasting and valuable improvements made on such land by the occupying claimant,” etc. [Comp. Stat., Chap. 63.]
Now is it not obvious that the plaintiff, according to the evidence and finding of the district court, belongs to neither of these classes ? Having deliberately, and without fraudulent inducement, or mistake of facts, entered into this contract with the railroad company, the actual owner of the legal title, for the purchase of the land, is he in a ■situation to say, that the title is “adverse” to him ? Is he not effectually estopped from so claiming ? By the plain letter of the statute it is only when the occupying claimant’s possession is overthrown “by an adverse and better title” than his own, that it affords him any relief.. Surely, a title which he has so far recognized as to purchase for his own protection, and under which he holds possession of the land, can in no sense be properly said to be adverse to him. To hold it to be so would, as we think, be equivalent to saying, that provisions for forfeiture for non-payment, etc., in, contracts for the sale of ■land, although made with all fairness, and in the utmost good faith, shall be enforced only at the option of the purchaser. That so startling an effect was ever intended for this law by its framers we cannot believe.
It is true that in its provisions it is eminently humane and should be liberally construed. It should be admin[297]*297istered in the same spirit that prompted the legislature to its enactment. But, notwithstanding all this, the courts have no right to extend its operation to cases not falling fairly within its terms. The intention of the lawmakers evidently was that in the specified cases, it might be resorted to as a shield against the enforcement of strictly legal, but in one sense inequitable demands, based upon adverse and superior titles, but never as a weapon of offense, by one party to a contract, to strike down and destroy rights of the other, which, for a sufficient consideration, he had solemnly undertaken to respect.
Such being our view's upon this branch of the case, we must hold that, sustaining the relation of vendee to the defendant, the plaintiff is not entitled to relief as an occupying claimant, and the judgment of the district court must be affirmed.
Judgment Affirmed.