OREGON & C. R. CO. et al. v. UNITED STATES, 77 F. 67

ROSS, Circuit Judge.

The case is this: By the act of congress of July 2, 1864 (13 Stat. 365), the Northern Pacific Bailroad Company was incorporated, with authority to construct and maintain a continuous railroad and telegraph line— “Beginning at a point on Lake Superior, in the state of Minnesota or Wisconsin, thence westerly by the most eligible railroad route, as shall be determined by said company, within the territory of the United States, on a line north of the doth degree of latitude, to some point on Puget Sound, with a branch via the valley of the Columbia river, to a point at or near Portland, in the s'tate of Oregon, leaving the main trunk line at the most suitable place, not more than three hundred miles from its western terminus.” And granting to the company, in aid thereof, every alternate

section of public land, not mineral, designated by odd numbers, to the amount of 20 alternate sections of land per mile on each side of its line, as the company should adopt through the territories of the United States, and 10 alternate sections per mile where the road 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; and whenever prior to said time, any of said sections or parts of sections shall have been granted, sold, reserved, occupied by homestead settlers, or pre-empted, or otherwise disposed of, other lands shall be selected by said company in lieu thereof, under the direction of the secretary of the interior, in alternate sections, and designated by odd numbers, not moré than ten miles beyond the limits of said alternate sections.” The sixth

section of the act provided that: “The president of the United States shall cause the lands to be surveyed for forty miles in width on both sides of the entire line of said road, after the general route shall be fixed, and as fast as may be required by the construction of said railroad; and the odd sections of land hereby granted shall not be liable to sale, or entry, or pre-emption before or after they are surveyed, except by said company, as provided in this act.” On the 6th. day of March, 1865, Josiah Perham, as president of the Northern Pacific Bailroad Company, addressed to the secretary of the interior the following letter: “Washington, D.

C., 6 March, 1865. “Hon. J. P.

Upsher, Secretary of the Interior — Sir: Under authority from the board of directors of the Northern Pacific Railroad Company, I have designated on the accompanying map, in red ink, the general line of their railroad from a point on Lake Superior, in the state of Wisconsin, to a point on Puget Sound, in Washington territory, via the Columbia river, adopted by said company as the line of said railroad, subject only to such variations as may be found necessary after more specific surveys; and I respectfully ask that the same may be filed in the office of the commissioner of the general land office, together with a copy of the charter and organization of said company, and that under your directions the lands granted to said company may be marked and withdrawn from sale in conformity to law. “I am, respectfully, your obi. servt, “Jostah Perham, Prest.

N. P. R. R. Company.” Accompanying this letter was a map upon which was traced in red ink a line indicated by the letters, “H, J, K, L, M, A, B, G,” and extending from Lake Superior to Puget Sound, and along which was written this explanatory statement: “H, J, K, L, M, A, B, 0, is practicable railroad, as surveyed by Governor Stevens.” On the 9ih of yiardi, I860, the then secretary of the interior, Mr. Upsher, addressed to ihe commissioner of the general land office the following letter: “Department of the Interior. “Washington, D.

C., March 9th, 1865. “Sir: Herewith I transmit a map upon which the ‘general line’ of the Northern Pacific Railroad, as adopted by the board of directors of that railroad company, is delineated; also a copy of the letter of the president of sa.id company, dated the sixth instant, requesting that the granted lands along said line be withdrawn from market In view of the provisions of the 3d and 6th sections of the act of congress, approved July 2, 1864 (Pamphlet Daws, pages 368, 369), should you perceive no objection, I think that the odd-numbered sections along the line for ten miles in width on each side, in Minnesota and Wisconsin, and for twenty miles in width on each side along that part of the line extending through the territories westward to Puget Sound, may bo withdrawn as requested, as preliminary to the final survey and location of said railroad.

The even-numbered sections along' the line will, however, be subject t.o disposal by the United ¡States, as provided in the Oth

section of said act of congress. “Very respectfully, your ob’t servant, J. P. Upsher, Secretary. “The Commissioner of the General Rand Office.” Mr. Harlan having, shortly after, succeeded Mr.

Upsher as secretary of the inferior, the commissioner of the general land office on June 22, 1865, addressed to him a letter, stating, in substance, that Secretary Upslier had, under date of March 9, 1865, sent to the general land office a diagram showing the proposed route of the Aorfhern Pacific Bailroad Company, which diagram had been filed in the secretary’s office, accompanied by a request for the withdrawal of the land along such route; that, as no withdrawal had been ordered by Secretary Upsher, no action was taken in the general land office upon the application, and that as Mr.

Perham, president of the company, had called attention to the matter, the commissioner, while proceeding to state objections to the diagram, and Ms reasons for t MnMng no withdrawal for the benefit of the company should be made, asked for such directions as the secretary should deem proper in the premises. Among the objections urged by the commissioner was this: That the diagram presented to and filed with the secretary did not constitute such a map of the general route of the proposed road as was required by law and the rules of the land department.

That these required “a connected map showing the exact location; the map indicating by flagstaffs the progress of the survey; the map to be authenticated by the affidavit of the engineer, with the approval of the accredited chief officer of the grantee.” And that, in the judgment of the commissioner, no withdrawal should be ordered until such a map is filed in the general land office.

These views of the commissioner, so far as the record shows, were acquiesced in by the secretary of the interior, as well as by the Northern Pacific Railroad Company; for nothing further, so far as appears, was ever done with or under the Perham map or diagram.

On the 25th of July, 1866, congress made a grant to the Oregon & California Railroad Company, in aid of the construction of a line of railroad and telegraph beginning at the city of Portland, Or., and extending thence southerly through the Willamette, Ump-qua, and Rogue River valleys, to the southern boundary of that state, there to connect with a line of railroad and telegraph to be built from a point on the Central Pacific Railroad, in the Sacramento valley, in California, to the point of connection at the Oregon line. 14 Stat. 239. The grant was of every alternate

section of public land, not mineral, designated by odd numbers, to the amount of 20 alternate sections of land per mile (10 on each side) of the designated line, with the provision usually found in such grants, for the selection of indemnity lands within defined limits for such sections, or parts of sections, within the primary limits, as shall be found to have been granted, sold, reserved, occupied by homestead settlers, pre-empted, or otherwise disposed of.

On October 29, 1869, the Oregon & California Railroad Company duly filed in the office of the commissioner of the general land office its map of definite location, showing that portion of the surveyed line it was by the act of July 25, 1866, authorized to build from Portland southerly to the California boundary, and extending beyond and opposite the lands here in controversy.

The map so filed was accepted, and by direction of the secretary of the interior the commissioner of the general land office on the 31st day of January, 1870, ordered the withdrawal, for the benefit of the Oregon & California Railroad Company, from sale or location, pre-emption, or homestead entry, all the odd-numbered sections within 20 and 30 miles of the designated line of road.

The Oregon & California Railroad Company proceeded to construct the road along the line so designated, and, having completed it, it was inspected by commissioners appointed for the purpose by the president; and, having been found by him to have been constructed in accordance with the terms of the grant, patents were afterwards, and prior to the commencement of this suit, issued to the Oregon & California Railroad Company for the lands in controversy.

Nothing was done by the Northern Pacific Railroad Company under' its grant, except the filing of the Perham map or diagram, together .with the accompanying letter of the president of that company, and his request for the withdrawal of the lands along its line for its benefit, prior to the definite location of the route of the Oregon & California Railroad Company on October 29, 1869.

In the year following, to wit, May 31, 1870, congress passed a joint resolution, by which, among other things, the Northern Pacific Railroad Company was authorized— “To locate and construct, under the provisions and with the privileges, grants, and duties provided for in its act of incorporation, its main road to some point on Puget Sound via the valley of the Columbia river, with the right to locate and construct its branch from some convenient point on its main Irunlt line across the Cascade Mountains to Pnget Sound; and in ihe event of there not being in any state or territory in which said main line or branch may he located, at the time of the final location thereof, the amount of lands per mile granted by congress to said company, within the limits prescribed by its charter, then said company shall be entitled, under the directions of the secretary of the interior, to receive so many sections of land belonging to the United States, and designated by odd numbers, in such state or territory, within ten miles on each side of said road, beyond the limits prescribed in said charter, as will make np such deficiency, on said main line or branch, except mineral and other lands as excepted in the charter of said company of eighteen hundred and sixty-four, to the amount of the lands that have been granted, sold, reserved, occupied by homestead settlers, pre-empted, or otherwise disposed of subsequent to ihe passage of the act of July two, eighteen hundred and sixty-four.

And that twenty-five miles of said main line between its western terminus and the city of Portland, in the state of Oregon, shall be completed by the. first day of January, Anno Domini eighteen hundred and seventy-two, and forty miles of the remaining portion thereof each year thereafter until the whole shall be completed between said points.” 16 Stat. 378. Rv this resolution, as said by Mr. Secretary Lamar in Railroad Co. v. McRae, 6 Land Dec. Dep. Int. 400— “The designations of the lines of the road were changed.

That which by tile granting act was known as the ■branch line’ (via the valley of the Columbia river, to a point at or near Portland, in the state of Oregon) was changed to •main road’ or ‘main line,’ and that which had been designated as ‘main line’ (across the Cascade Mountains to Puget Sound) was changed to ‘branch line.’ So, by the joint resolution of 1870 (May ¡fist), the company was authorized to locate and construct its main line via the Columbia river, through some point at or near Portland, Or., to a suitable point on Puget Sound, with the privileges, grants, and duties provided for in its act of incorporation.” After the passage of the joint resolution of May 31, 1870, to wii* on August 4. 3870, two maps, designating- the general route of its road, were filed by the Norlhern Pacific Railroad Company in the general laud office, upon which orders of withdrawal of the Linds along the line indica ted thereby were made, respectively, August 13, 1870, and October 27, 1870, within the limits of which withdrawals are the lands afterwards patented to the Oregon & California Railroad Company, and here involved.

The Northern Pacific Railroad Company never filed any map of definite location of the line it was authorized to build opposite the lands in controversy, and never built, such line; and, for its failure in this respect, congress, by the act of ¡September 29, 1890 (26 Stat. 496), forfeited whatever rights, if any, the company liad to the lands here in question, and by the present suit the government seeks to cancel the patents therefor, which were issued to the Oregon & California Railroad Company.

That the Oregon & California Railroad Company got nothing by the forfeiture of September 29, 3890, is clear, for the forfeiture declared was for the benefit of the government only. U. S. v. Southern Pac. R. Co., 146 U. S. 570, 13 Sup. Ct. 152.

And if the grant to the Northern Pacific Railroad Company ever attached to the lands in controversy, or if they were withdrawn from the mass of public lauds for the benefit of that company at the time the grant to the Oregon & California Railroad Company became effective, it is clear that they were not embraced by that grant, and that the patents therefor should be annulled. The real question in the case, therefore, is, did the lands in question ever become affected by any grant to the Northern Pacific Railroad Company?

If they were public lands, not mineral, and not granted, sold, reserved, occupied by homestead settlers, pre-empted, or otherwise disposed of, at the time of the grant to the Oregon & California Railroad Company, and at the time of the filing of the map of definite location of the route of that company’s road along and opposite to them, it is obvious that they would be embraced by the grant to that company, and cannot be affected by any grant contained in the subsequent joint resolution of congress of May 31, 1870. That resolution, as held by the supreme court in the case entitled U. S. v. Northern Pac. R.

Co., 152 U. S. 284, 294, 297, 14 Sup. Ct. 598, 602, 603, contained a new grant to the Northern Pacific Railroad Company, but did not embrace .any public land disposed of after the passage of the act of July 2, 1864.

The joint resolution of May 31,1870, and the proceedings taken thereunder by the Northern Pacific Railroad Company, have therefore no bearing whatever on the question in this case, and the effect given by the court below to the maps filed by the Northern Pacific Railroad Company under and pursuant to the provisions of that resolution constitutes one of the errors into which the court below fell in its consideration and decision of the case.

The only thing remaining in the case that could take the lands in controversy out of the mass of public lands to which the grant of 1866 to the Oregon & California Railroad Company applied; is the preceding grant to the Northern Pacific Railroad Company of July 2, 1864, and the Perham map or diagram filed thereunder. It is not pretended that any order of withdrawal was made by any officer of the land department based on that map.

Was it sufficient, taken' in connection with the act of July 2, 1864, to constitute a statutory withdrawal of the lands in question for the benefit of the Northern Pacific Railroad Company? It was not, for at least two very substantial and obvious reasons.

Upon its face, as well as by the letter accompanying it, from the president of the Northern Pacific Railroad Company, of date March 6, 1865, it purported to be a designation of the general route of a railroad from a point on Lake Superior, in the state of Wisconsin, via the valley of the Columbia river, to Puget Sound, in the state of Washington, which the letter of its president stated the company had adopted as the line of its road. That was not the line the Northern Pacific Railroad Company was authorized by the act of July 2, 1864, to locate and build.

The line authorized by that act, and in aid of which that grant was made, extended, as has been seen, from a point on Lake Superior, in the state of Minnesota or Wisconsin, westerly, by. the most eligible railroad route, on a line north of the forty-fifth degree of latitude, and within the territory of the United States, to some point on Puget Sound, with a branch via the valley of the Columbia river to a point at or near Portland, in the state of Oregon; leaving the main trunk line, at the most suitable place, not more than 300 miles from its western terminus. 13 Stat. 365; U. S. v. Northern Pac. R. Co., 152 U.

S. 284, 14 Sup. Ct. 601.

As said by the supreme court in the case just cited, “Although that act allowed the company to adopt the most eligible route, within the territory of the United States, north of the forty-fifth degree of latitude, it is clear that congress contemplated the construction of a main trunk line between Lake Superior and Puget Sound, which would not touch any point ‘at or near Portland,’ and the western end of which would he east and northeast of a direct line between Portland and Puget Sound, and, In addition, a branch line leaving the main trunk line, at some suitable place, not more than three hundred miles from its wéstem terminus, and extending ‘via the valley of the Columbia river to a. point at or near Portland.’ T£ the main line, as originally Indicated by the act of 1864, had been established on the route between Portland and Puget Sound, the branch line could not have left the main line at some point not more than three hundred miles from Its western terminus, and extended via the valley of the Columbia river to a point at or near Portland.

The authority given to the company to adopt the most eligible route did not authorize it, by a. map of general route, to cover an unlimited extent of country, north of the forty-fifth degree of latitude. On the contrary, as said in St. Paul & P. R. Co. v. Northern Pac. R. Co., 139 U. S. 1, 13, 11 Sup. Ct. 389, 393, ‘when the termini of a railroad are mentioned for whose construction a grant is made, the extent of which is dependent upon the distance between those points, the road should he constructed upon the most direct and practicable line.

No unnecessary deviation from such line would he deemed within the contemplation of the grantor, and would be rejected as not in accordance with the grant.’ ” The indefiniteness of the Perham map or diagram, which is so manifest on its face, was alluded to by the supreme court, in the same case (152 U. S. 292, 14 Sup. Ct. 601.), in these words: “It may he that the indefiniteness of the map of general route presented by the Northern Pacific Railroad Company in 1865 constituted the reason why that map was not accepted by the interior department.” So it was, as has already been shown.

The fact that upon its face it did not purport to be anything more than a mere sketch or diagram, unauthenticated by any engineer or officer charged with, the duty of designating such a route, coupled with the fact that it was not only not accepted, but was rejected, by the land department of the government, as insufficient to properly designate the general route of the road the company was by the act of congress authorized to build, constitutes a second reason why the granting act did not itself operate to withdraw the lands in controversy for the benefit of the Northern Pacific Railroad Company.

They therefore remained public lands, to which the subsequent grant to the Oregon & California Railroad Company might apply, unless it be that the grant contained in the act of July 2, 1864, in and of itself, without any designation of the route of its road by the grantee, the Northern Pacific Railroad Company, operated to withdraw the lands in controversy from the mass of public lands. And, if these lands, why not all other public lands within the territory of the United States, situated north of the forty-fifth degree of latitude, and between the termini named in the act?

It would be difficult to maintain any distinction in this respect between any of the public lands, not mineral, situated in the immense belt through and along which the Northern Pacific Railroad Company might have located and constructed its road. The court below, in its- opinion, held that: “It might definitely locate its line in good faith, in' compliance with the requirement of the act, and by such location select and acquire the lands within the place limits upon both sides of its line.

It is unimportant that the company never exercised this power.” In holding that it is unimportant that the Northern Pacific Railroad Company never exercised its right to locate and build its road along and opposite to the lands in controversy, the court below committed its second error. It is said that the grant contained in the act, in and of itself, was “an appropriation of the public lands.” Of what public lands? Of all the public lands situated within that immense belt through and along which the Northern Pacific Railroad Company was authorized to locate and build its road?

Manifestly, if, prior to any designation by the grantee company of the line of road it was authorized to locate and build, the act making the grant, in and of itself, operated as an appropriation of any particular land, it operated as an appropriation of all public lands within the United States situated north of the 45th degree of latitude, and between the termini named in the act; for, prior to some designation of the route, it could not be known where the grantee company would find the most eligible railroad route, along which route it was authorized to build.

We repeat, therefore, that prior to the designation of some route no distinction can be made between any of the public lands, not mineral, situated in the belt through and along which the Northern Pacific Railroad Company might have located and constructed its road. Is it possible that all of that immense body of public land was, by the act of July 2, 1804, in and of itself, without any designation by the grantee company of the line of its road, withdrawn from subsequent grants? Undoubtedly not. In the ease of U. S. v. Southern Pac. R. Co., 146 U. S. 570, 13 Sup.

Ct. 152, the supreme court said that the intent of congress in all railroad land grants, as has been declared by that court again and again, was that such grants shall operate at a fixed time, and shall take only such lands as at that time are public lands. And in respect to this very grant of July 2, 1864, the supreme court, in the case of U. S. v. Northern Pac. R. Co., 152 U. S. 296, 14 Sup.

Ct. 598, 603, in express terms declared that it embraced only public land 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, át the time its line of road was definitely fixed, and a plat thereof filed in the office of the commissioner of the general land office.

As it is not pretended that any such line, in so far as concerns the lands here in controversy, ever was definitely fixed, how that grant, in and of itself, without any designation of the required route, can be held to embrace these lands, we are unable to understand. It requires

an act of tíre grantee to give precision to such grants, and to identify by the location of its road the lands embraced by the grant. YVhen that is properly done, the grant attaches thereto, and becomes effective as .of its date;, hut, until there is some designation of route by tie grantee, there is nothing to segregate any particular land from the mass of public lands, and manifestly, if such segregation never occurs, those that otherwise might he covered by the grant remain public lands, and subject to any other valid grant that congress may have made embracing them.

The grant of July 2, 18(14, to the Northern Pacific Kailroad Company never having taken effect, so far as concerns the lands in controversy in this suit, they were public lands at the time of the grant to the Oregon & California Kailroad Company, and at the time of the definite location by that company of the road it was authorized to build along and opposite to them; and falling as they do within the terms of that grant, and having been earned by and patented to that company, the judgment is reversed and the cause remanded, with directions to the court below to dismiss the bill.