NORTHERN PAC. RY. CO. v. McCORMICK, 94 F. 932

MORROW, Circuit Judge, after the foregoing statements of facts, delivered the opinion of the court. The assignments of error upon which the case is now here are ten in number, but they may all be reduced to two general propositions:

(1) That the court erred in holding that the land described in the complaint was subject to homestead and pre-emption entry after the general route of the northern Pacific Railroad was fixed on February 21, 1872; (2) that the court erred in holding that the land in controversy was subject to any claim or right on the part of the defendant on and after July 6, 1882, when the line of definite location of the road was fixed, and a plat thereof filed in the office of the commissioner of the general land office.

The act of July 2, 1864, entitled "An act granting lands to aid in the construction oi a railroad and telegraph line from Lake Superior to Puget Sound, on the Pacific Coast, by the northern route” (13 Stat. 365), provided in

section 3: “That there he, and hereby is, granted to the ‘Northern Pacific Railroad Company,’ its successors and assigns, * * * 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 tille, 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 selected1 by said company in lieu thereof, under the direction of the secretary of the interior, in alternate sections, and designated by odd numbers, not more than ten miles beyond the limits of said alternate sections.” The sixth

section directed the lands to be surveyed for 40 miles in width on both sides of the entire line of the road after the general route was fixed, and as fast as was required by the construction of the railroad, and provided that: “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; but the provisions of the act of September, eighteen hundred and forty-one, granting pre-emption rights, and the acts amendatory thereof and of the act entitled ‘An act to secure homesteads to actual settlers on the public domain,’ approved May twenty, eighteen hundred and sixty-two, shall be, and the same are hereby, extended to all other lands on the line of said road, when surveyed, excepting those hereby granted to said company.

And the reserved alternate sections shall not be sold by the government at a price less than two dollars and fifty cents per acre, when offered for sale.” The plaintiff in error contends that when the general route of the railroad was fixed on February 21, 1872, the land in dispute, being part of an odd-numbered

section within the exterior limits of the grant, as determined by such general route, was withdrawn from sale, homestead, and pre-emption entry, under the provisions of

section 6 of the granting act. It is perhaps immaterial that there is no evidence in this record that the land department at any time withdrew from sale or location, pre-emption or homestead entry, any of the public lands falling within the limits of the grant, or that a map of the lands withdrawn was ever filed with the commissioner of the general land office. Whatever withdrawal or reservation was made could only have been made under the provisions of the statute. We must therefore look to the terms of the act itself to ascertain what lands were granted to the railroad company, and declared not to be liable to sale or entry, pre-emption or homestead entry. In

section 6 of the act it is provided that they are the “odd sections of land hereby granted.” This clearly does not mean all sections of land designated by odd numbers within the limits of the grant, but only such sections as are granted by the act to the railroad company. Besides, this

section is not to be construed without reference to other sections of the act. “It must be taken in connection with

section 3, which manifestly contemplated that rights of pre-emption, or other claims or rights, might accrue or become attached to the lands granted after the general route of the road was fixed, and before the line of definite location was established.” Railroad Co. v. Sanders, 166 U. S. 626, 636, 17 Sup. Ct. 676. The terms of the grant are contained in

section 3, where it is provided that the land granted is every alternate

section of public land, not mineral, designated by odd numbers, within tbe limits of the grant, “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.” It needs no argument to show that the lands here described as excepted from the operation of the grant at the time the line of the road should be definitely fixed were never at any time granted to the railroad company, and, being expressly withheld, were as free from the terms of the grant when the general route of the road was fixed on February 23, 3872. as though they had never been within its limits.

Like mineral lands, they were expressly excluded from the operation of the act. It follows, that the first, and, indeed, the only, question to be determined is this: Was the land in controversy free from pre-emption or other claim or right on the 6th day of July, 3882? If it was, it was part.of (lie grant to the railroad company. If it was not, the company never had title to the land, and cannot prevail in this action. In an action of ejectment, the plaintiff must recover, if at all, upon the strength of his own title, and not upon the weakness of the tiüe claimed by his adversary. Fussell v. Gregg, 113 U.

S. 550, 565, 5 Sup. Ct. 639. It appears that the defendant entered upon this land in May, 1880, as a purchaser of the possession and improvements from the previous owner, and thereafter continuously farmed and improved the same with the intention of entering and obtaining a title thereto, if so entitled under the laws of .the United States. He was therefore a settler upon this land at the time the line of the road was definitely fixed, and a plat thereof filed in the office of the commissioner of the general land office, on July 6, 1882.

Was this settlement, under the circumstances, a “claim or right” excluding the land from the grant to the railroad? The land was at that time unsur-veyed, and was not surveyed until the year 1885, and the official plat was not filed in the land office until March 23, 1885. Two days thereafter, namely, on March 25, 1885, the defendant made his application to enter the land as a pre-emptor, and thereupon filed the necessary papers for that purpose.

Section 6 of the act of July 6, 1864, after providing for the survey of the lands on both sides of the Northern Pacific Railroad, provided that the odd sections granted should not be liable to sale or entry or pre-emption before or after they were surveyed, except by said company, as provided in the act.

It was further provided that: “The provisions of the act of September fourth, eighteen hundred and forty-one, granting pre-emption rights, and the acts amendatory thereof, and the act entitled ‘An act to secure homesteads to actual settlers on the public domain,’ approved May twenty, eighteen hundred and sixty-two, shall be, and the same are hereby extended to all other lands on the line of said roád when surveyed, excepting those hereby granted to said company.” This provision of the act extending the pre-emption and homestead laws to all other lands on the line of the road not granted to the company is significant, in view of the fact that these laws had already been extended to all lands belonging to the United States to which the Indian title had been, or might thereafter be, extinguished, Act June 2, 1862 (12 Stat. 413), and Act May 20, 1862 (12 Stat. 392).

The only inference to be drawn from this provision is that these laws were to be continued in full force and effect, notwithstanding the grant, and to be applicable to all lands not specifically therein described as having been granted to the company. In the case of Leavenworth, L. & G. R. Co. v. U. S., 92 U. S. 733, 748, the supreme court, in speaking of a grant of land made in 1863 to the state of Kansas, declared the policy of congress at that date to have been to preserve pre-emption and homestead rights until the line of the aided road should be definitely fixed.

The court said: “Formerly, lands which would probably be affected by a grant were, as soon as it was made, if not in advance of it, withdrawn from market. But experience proved that this practice retarded the settlement of the country, and at the date of this act the rule was not to withdraw them until the road should be actually located. In this way, the ordinary working pf the land system was not disturbed. Private entries, pre-emption and homestead settlements,, and reservations for special uses, continued within the supposed limits of the grant, the same as if it had not been made.

But they ceased when the routes of the roads were definitely fixed, and if it then appeared that a part; of the lands within those limits had been either sold at private entry, taken up by pre-emp-tors, or reserved by the United States, an equivalent was provided.

The companies were allowed to select, under the direction of the secretary of the interior, in lieu of the lands disposed of in either of these ways, an equal number of odd sections nearest to those granted, and within twenty miles of the line pf the road.' Having thus given lands in place and by way of indemnity, congress expressly declared what the act had already implied, — that lands otherwise appropriated when it was passed were not subject to it.” These observations of the court are peculiarly applicable to the grant to the Northern Pacific Company, and in the case of Northern Pac. R. Co. v.

Musser-Sauntry, L. L. & Mfg. Co., 168 U. S. 604, 610, 18 Sup. Ct. 207, this feature of the law is given as a reason why promptness on the part of the company in building its road would' result to its advantage, in finding nearly all its grant within place limits. The court said: “At the time oí the passage of the act of 18(54 only in the vicinity of the proposed eastern and western termini were there any settlements. The great hulk of the terriiory through which the road was to pass was almost entirely unoccupied.

Congress, fixing the time for commencing and for finishing the work within two and twelve years, respectively (section 8), contemplated promptness in the construction of the roatl, ini ending thereby to open this large unoccupied terriiory to settlement. In view of the road’s traversing a com-pararme wilderness, it made a grant of enormous extent. Within the unoccupied territory thus to be traversed there were few settlers, and few, if any, land giants.

It knew, therefore, (hat if the company proceeded promptly, as required, it would find within its place limits nearly the full amount of its grant” What, thou, was the effect of the settlement by the defendant upon the land in question, under the pre-emption laws? In Whitney v. Taylor, 158 U. S. 85, 94, 15 Sup.

Ct. 800, the supreme court held that the act of September 4. 1841, “gave the right of pre-emption to one making a settlement in person, and who inhabits and improves the land, and erects a dwelling thereon.” The various provisions of the pre-emption act are now embraced in the Revised ¡Statutes, and that part of

section 10 which declares who are competent pre-emptors on the public lands, and what constitutes a pre-emption claim, is found in

section 2259, as follows: “livery person, being the bead of a family, or widow, or single person, over tlie age of twenty-one years, and a citizen of the United States, or having filed a declaration of intention to become such, as required by the naturalization laws, who has made, or hereafter malees, a settlement in person on the public lands subject to pre-emption, and who inhabits and improves the same, and who has eroded or shall erect a. dwelling thereon, is authorized to enter with the register of the land-o(fleo for the district in which such land lies, by legal subdivisions, any number of acres not exceeding one hundred and sixty, or a quarter-section of land, to include the residence of such claimant, upon paying to the United States the minimum price of such land.” Then follow sections in the Revised Statutes limiting the right of pre-emption, and providing the proof and the method of procedure in the land -office by which that right may be established.

And, where a settlement is made on unsurveyed land, the time after the survey within which the declaratory statement must be filed is prescribed in

section 2266, as follows: “Tn regard io se moments which are aulhorized upon unsurveyed lands, the pre-emptions claimant shall be in all cases required to file his declaratory statement within three months from the date of the receipt at the district laid-oiiiee of the approved plat of the township embracing such pre-emption settlement.” These provisions of the statute distinctly recognize that the qualified settler who enters upon and improves a tract of public land with the intention of obtaining a title thereto under the preemption laws is a claimant, that he has a claim to the land, and that this claim is a right of pre-emption.

This being so, it would seem that this was one of the “claims-’ congress had in view when it provided that the odd-numbered sections granted to the railroad company should be free from “other claims or rights” when the definite line of the road should be fixed. Had the defendant perfected his entry of record and filed his declaratory statement in the land office prior to that time, he could then have had a preemption claim, and the land would not have been free from such claim. But congress went further, and limited the grant to lands “free from claims.” As said by the supreme court in Northern Pac. R. Co. v.

Musser-Sauntry L. L. & Mfg. Co., supra: “No one can. read this entire description without being impressed with the fact that congress meant that only such lands should pass to the Northern Pacific as were public lands, in the fullest sense of the term, and free from all reservations and appropriations, and all rights or claims in behalf of any individual- or corporation, at the time of the definite location of its road.” But we are not without direct authority upon this question. In Railroad Co. v. Sanders, 166 U. S. 629, 17 Sup. Ct. 671, this same grant was before the court.

After the genera! route of the road was fixed, February 21, 1872, and prior to the establishment of its line of definite location, July 6, 1882, certain persons, qualified to enter mineral lands under the laws of the United States, entered upon the possession of lands within the exterior lines of both the general and definite routes of the railroad, and made claim to such lands. These claims were pending when the definite line of the road was fixed.

The defendants, who subsequently entered into the possession of the land, did not assert title in themselves, but resisted the claim of the railroad company upon the ground that the land was excluded from its grant by reason of the fact that there were claims to the land at the time of the location of the road. The claims consisted, as stated, in the application of certain parties to purchase the land as mineral land. The land was not in fact mineral land, and it does not appear what became of the applications.

They were presented merely as claims, without any other fact or circumstance tending to establish their connection with any right of title, and did not in any way relate to the defendants’ right of possession of the land.

The court, in commenting upon this feature of the case, said: “But it is said that no account is to be taken of those applications, for the reason that the present defendants, who had nothing to do with them, and had no interest in them,' confess in their answer that the lands in question ‘did not contain gold or other precious metals in paying quantities, or in such quantity as to make the same, or any part thereof, commercially valuable therefor’; that the lands are therefore to be regarded as agricultural lands that passed to the company under the act of 1804, and were preserved to it by the filing of the map of the general route in 1872, and by their withdrawal in that year by the general land office ‘from sale or location, pre-emption or homestead entry.’ This view overlooks the fact that the express declaration of congress was that no ppblic lands should pass to the company, to which, at the time of the definite location of the road, the United States did not have title free from preemption ‘or other claims or rights.’ If the applications made in 1S80 and 1881 to purchase different parts of the

section in question, and which were pending and undisposed of in 1882, when the company filed its map of definite location, constituted ‘claims,’ within the meaning of the act of 1864, then it was not competent for the defendants, by any admission they might make, for what-t;ver purpose made, as to the quality of these lands, — whether mineral or not,— to eliminate from the ease the essential fact that these ‘claims’ existed of record when the line of the road was deiinitely located.

Indeed, if it now appeared that the land oilioe finally adjudged, after the definite location of the road, that the lands embraced by those applications were not mineral, they could not be held to have passed to the railroad company under The act of 1864, for the reason that they were not, at the time of such definite location, free from preemption or ‘other claims or rights.’ ” In another part of the opinion the court says: “As the lands in question were not free from those claims at the time the plaintiff definitely located its line of road, it is of no consequence what disposition was or has been made of the claims subsequent to that date.” The court accordingly held that the lands did not pass to the railroad company by the terms of its grant, for the reason that claims, to the land were pending at the time of the definite location of the road.

The only distinction to he drawn between this case a,nd the one at bar is the fact that, in the case referred to, the applications to purchase the land as mineral land were on file in the land office when the line of definite location of the road was fixed, while in the present case, although the defendant had settled upon the land, he had not at that time filed his declaratory statement; but, as we have seen, this was not necessary under the statute, for the reason that the land was unsurveyed public land.

As soon as it had been surveyed, and the plat of the township embracing the settlement was received at the district land office, the defendant filed his declaratory statement, as required by

section 2266 of the Revised Statutes. What more could he do? He had not only settled upon the land before the line of the railroad was definitely fixed, but lie continued to occupy, cultivate, and improve the land until his claim was established by law, and a patent issued to him thereon, on the 1.6th day of November, 1891.

The action of the land department in issuing- a patent to the defendant may he of itself immaterial in this case, hut, in the proceedings in the land office resulting in the patent being issued, the fact of settlement upon the land by the defendant as a qualified settler under the law was found, and found by competent authority. It was also found that whatever right or claim the defendant had was based upon this settlement. In other words, the pivotal fact was established that a claim to this land, whatever that claim might be in law, existed on July 6, 1882. Catholic Bishop of Nesqually v. Gibbon, 158 U.

S. 155, 166, 15 Sup. Ct. 779. In Railroad Co. v. Colburn, 164 U. S. 383, 17 Sup. Ct. 98, the court declared the law to be that no pre-emption or homestead claim attaches to a tract of land until an entry in the local land office, and the plaintiff in error relies upon this case as excluding defendant’s claim.

But the facts in that case did not require the court to determine the effect of a settlement upon public land by a qualified settler, followed by a pre-emption entry within the time prescribed by law; and the court expressly stated that it deemed it unwise to make any observations concerning matters not considered by the supreme court of the state from which the case had been taken upon a writ of error. The case of Railroad Co. v. Groeck, 31 C. C.

A. 334, 87 Fed. 970, recently decided by this court, is also relied upon by the plaintiff in error as establishing the doctrine that the lands in question were withdrawn by the operation of

section 6 when the general route of the road was fixed, February 21, 1872, and were thereafter excepted from homestead and pre-emption entry. The act involved in that case was the act of July 27, 1866, granting lands to aid in the construction of the Atlantic & Pacific and the Southern Pacific Railroads. 14 Stat. .292.

Section 6 of that act is identical with

section 6 of the act granting lands to the Northern Pacific, but

section 3 of the former act differs very materially from the latter act, in fixing the time when the grant of specific lands should attach. It provides that there is granted every alternate

section of public land, not mineral, designated by odd numbers, wherever on the line of the road 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 designated by a plat thereof filed in the office of the commissioner of the general land office.” This plat was filed January 3, 1867, and under the terms of the act the grant at that time attached to the odd-numbered sections not subject to the reservations, claims, and rights mentioned in the act.

The defendant, Groeck, did not settle upon the land claimed by him until September 2, 1885, or more .than 17 years after the right of the railroad to specific sections had been fixed by law. His pre-emption entry was, however, accepted by the land department, and á patent for the land issued to him, because the withdrawal of the land from settlement by the secretary of the interior for the benefit of the railroad had been revoked on August 15, 1887.

This court held that the granting act itself operated to withdraw from settlement the lands lying within the limits of the grant from the date of the filing of the map of the general route, and this determination was in accordance with the express terms of the act. Manifestly, the law of that case has no bearing upon the case now before the court.

The sections of the act we have had under consideration differ very materially from the provisions of other acts granting lands in aid of public improvements, and decisions in cases based upon such different provisions cannot be followed as authority in this case, without noticing the distinction; and, as the views here expressed are'believed to be entirely in accord with the latest decisions of the supreme court upon the questions involved, it is not deemed necessary to discuss the other cases cited in the briefs.

It follows from what has been said that we are of the opinion the land in controversy was subject to homestead and pre-emption entry after the general route of the Northern Pacific Railroad was fixed, on February 21, 1872, ánd that it was not free from the claim of the defendant when the line of the road1 was definitely fixed, on July 6, 1882. The latter determination necessarily disposes of the case. The -judgment of the court below will be affirmed.