Summary
Error from Alien District Court.
Ejectment, brought by Neer against Williams, to recover possession of a certain tract of land in Allen county. Trial by the court at the adjourned March Term, 1881, when the court found for the defendant, and rendered judgment accordingly. Neer brings the case here. The opinion contains a. full statement of the facts.
1. The plaintiff is the owner of the land in controversy,, by virtue of the act of July 26, 1866. The patent recites the construction of the road mentioned in the-act; and the facts show its location, the withdrawal of the land, and the construction of the road within the ten years.
2. If plaintiff is not the owner under the act of 1866, he is the owner under the act of March 3,1863, because his grantor has constructed the road provided for in said act. Defendant insists that these lands were excepted out of the act of 1866 by the proviso clause which excludes all prior reservations. It is manifest that unless so reserved, these lands come squarely within theactof 1866. Were they reserved at the date of the act of 1866 ? And if so, what were the consequences of such reservation? There is no pretense that these lands were reserved unless by the act of March 3, 1863. The only escape from the act of 1866 is, to bring the lands within the act of 1863. To deny that title passed by the act of 1866, is to admit that the lands came within the provisions of and were reserved and appropriated by the act of 1863. If they were reserved at that time by and under that act, it must, have been by virtue of the location and withdrawal of March-19, 1863; for the only location and withdrawal prior to the act of July 26, 1866, were the location and withdrawal evidenced and effected by the letter of that date from the commissioner; therefore, to deny that the title to these lands passed by the act of 1866, is to concede that they were within. the operation of the act of 1863, and that the location and withdrawal of March 19,1863, were valid. Now, conceding this to be so, (as defendant must either do or surrender unconditionally to the act of 1866,) what follows? By the terms of the act of 1863, the instant the road was located, that instant the state of Kansas became the owner of the lands. If the act of 1866 did not include these lands, it was because the state of Kansas and not the United States owned these lands at the date of that act. Every road of escape from the act of 1866 leads directly within the provisions of the act of 1863.
The title to these lands was in the state of Kansas on the 26th of July, 1866, either by that or by the prior act of 1863. Where has it gone, if at all, since that date? Has it again vested in the United States? Defendant claims that it has reverted to the United States by reason of a failure to construct the road within the prescribed time. Conceding the fact of such failure (which we do not), would any such consequence follow? We think not. This precise question is settled by the supreme court of the United States. (Sohulenberg v. Harriman, 21 Wall. 63.) Therefore, if as claimed, these lands did not pass by the act of 1866, the title to-day is in the. state or its grantees, unless a forfeiture has been enforced as indicated in the above decision.
The statement of facts shows that there has been nothing of the kind unless it be the act of July 24, 1-876. Has that act any such effect? We think not, and for two reasons: First, the act has reference to unpatented lands only. Whether the road had been completed or not, it was manifestly the design of the act not to interfere where patents had already issued. True, these lands had not been patented to the company by the United States, but they had been patented by the state which held the title in trust, and that was what the statute intended ; otherwise that clause would be a nullity, since under the act no patents were or could have been issued by the United States in any event. Again, that act was a declaration of forfeiture only so far as the L.- L. G. road was concerned. The grant was for the benefit of two roads and their respective branches. The withdrawal was for each and both, and the title vested in the state for the benefit of each and both; and the declaration of forfeiture, to have reclaimed the title vested in the state, must have been as comprehensive and far-reaching as the acts and proceedings which placed the title in the state. The rights of the companies were analogous to common-law joint tenancy. If either one failed to build, the other would be entitled to all land in the overlapping limits, and if the rights of one were cut off by the enforcement of forfeiture, a like result would follow. The fact that the act of 1876 was necessary to reclaim the title, so far as it had vested, as to unpatented lands, and for the benefit of the L. L. & G. road, was a recognition of the fact that a like act would be necessary to divest the title to patented lands, and all lands, so far as the same were held by the state for the benefit of the Atchison road or its successors or assignees. Therefore if these lands did not pass under the act of 1866, they still remain in the state, or its grantees, for they never-were reclaimed by the United States under the act of 1876. Where then is the title of these lands to-day?
Unless plaintiff became the owner under the act of 1866, he did become such owner under the act of March 3,1863. That act grants lands within twenty miles of a 'road to be constructed from where the Atchison road intersects the point where the Lawrence road enters the Neosho valley. The denial of plaintiff’s rights under the act of 1866 is a concession that the state held these lauds in trust to be conveyed to the company building the branch from Emporia. The plaintiff’s grantee, the M. K. & T. Rly. Co., built that road, and the state in fulfillment of the trust conveyed the lands.
It is claimed the M. K. & T. Rly. Co. did not come within the grant, for various reasons. We are dealing with latos, not mere grants. The intent of the law was to accelerate the settlement and improvement of the country. To do this, it provided for the construction of great lines of road with intersections. It cannot be presumed that congress intended to indicate the exact location, to be followed regardless of the configuration of the country, or the rules of engineering which ordinarily determine the exact location of railroads. The location as specified in the act was of the most general and indefinite nature. The road from Lawrence was to run • in the direction of Galveston bay. By implication, though not expressly, it was required to “enter the Neosho valley.” It might do this near Emporia, or it might not do so this side the Indian territory.
The location of the Atchison branch had a double indefiniteness. It was to begin where the main line crosses the Neosho river, and that point might be anywhere within a distance of one hundred miles. It was to run to where the Lawrence road enters the Neosho valley, and this, as we have seen, might be anywhere from near Lawrence to the heart of the Indian territory. The phrase “Neosho valley” is also as indefinite as it well can be. It may mean .the entire region from which the waters flow through the Neosho on their way to the gulf, or it may mean close down to the bed of the stream, or the low, flat lands inclosed between the banks. Even after the Lawrence road was located, this uncertainty was not removed. The people at Colony insisted that since the Lawrence road first entered lands at that point whose drainage was through the Neosho, that that was the point where the Atchison branch should intersect. Iola ably and indignantly contended that the company forfeited its lands because it did not intersect there. Humboldt insisted that as both roads came to the river at that place the intersection should be there. Others still contended that the Lawrence road never fairly entered the Neosho valley until it crossed the river and entered the wide flat just north of that city. All these points had earnest, plausible and probably sincere advocates. What was the state to do under these circumstances but to exercise the very wide discretion with which it was vested, by selecting such one of these points as would best subserve the controlling intent of the law — due regard being had to the principles of engineering? In view of the uncertainty and indefiniteness of the. act, can it be said there was a breach of the trust, in the location of the branch road, of so serious a nature as would nullify the act? Assuredly not.
• Again, it has been urged that the branch did not stop when it reached the Lawrence road. No law required it should; and the intent of the act was better subserved by its not stopping there. It is also urged that the act did not authorize the M. K. & T. Rly. Co. to build this branch. It was a matter of no concern to congress what companies built the roads under the act of 1863. It nowhere required that all the roads or that any one road should be constructed or operated by one company. If the state of Kansas was of opinion that the ends of the act would be more speedily and certainly attained by parceling out each main line to half a dozen companies, there was nothing in the act which forbade. It did, in fact, first authorize one company to build the Atchison road and its branch. The grant said nothing about the particular company. That was exclusively within the control of the trustee — the state of Kansas, which first designated the A. T. & S. E. road as the recipient of the land. Afterward, with the assent of said company, it substituted the M. K. & T. Whose business was it? Is it any concern of the general government? or of defendant?
It is claimed that the assignment from the Atchison road to the M. K. & T. was never ratified by congress, and that the ratification by the state is void because it was done by resolution. What difference does it make? Suppose- there had been no pretense of any assignment or formal ratification: the state held the land in trust for whatever company might build the road in conformity with the act. The Atchison company did not and the M. K. & T. company did build the road in substantial conformity with the grant, and the trustee thereupon patented the land to its assignee. The title of the plaintiff is therefore unimpeachable, and it would be, even if attacked in a direct suit by the government.
3. Even if all the facts be as claimed by the defendant, and he be allowed to show them, plaintiff has all the title ■the state had in the lands, i. e., the right to hold until the general government sees fit to exercise its right of reclamation. Suppose not a mile of road had ever been constructed, and no certificate made by the governor, or adjudication by the •secretary: what would be the status of these lands if the United States saw fit never to exercise its right of reclaimer ? Might not the state do absolutely as it pleased with the lands? Might it not dispose of them to purchasers? and would not such purchaser have a perfect title as against all except the United States? Would not the state itself be estopped from saying it had no authority to convey ? and could any one occupying the position of defendant — a mere trespasser — question .such title?
4. Whether the road provided for in the act of March 3, 1863, was built at all or not, plaintiff is still the owner of these lands. The fact that said roads were completed according to the requirements of that law, is one thing. The fact that the secretary of the interior was satisfied that the road had been completed, is something which is entirely different. It was this last fact which the law made the contingency upon which the state was to execute this patent. The general government, by the law of 1863, virtually said to the state of Kansas: “ I now make you the owner of these lands. The instant the secretary becomes satisfied the roads mentioned in the act have been completed, that instant it will be your duty' to convey these lands.”- That contingency came. When it .came, the state had no discretion in the matter; there was no alternative before it but to discharge the trust, and it did so, both according to the spirit and the very letter.
True, it was the intent of the law that the patent should not issue until the road was- completed, but it did not make, .that fact the contingency upon which the patents should issue. It was not left to the trustee to determine when the contingency had arrived. That duty the law conferred upon the secretary. It was a question of fact to be determined. He was the chosen tribunal, appointed by the owner of the land to determine this question. He had full and exclusive jurisdiction of the subject-matter conferred upon him, by the law creating the-trust. He may have been imposed upon. He may have misconstrued the law or misconceived the evidence, but that cannot alter the fact that he did become satisfied as to the completion of the road. The duty of the state to convey the land depended, not upon the correctness, but upon the fact of such determination.
Now wherein was the execution of this patent any violation of the trust under which the state-held the lands? What else could the state have done under the law ? Did it not own these lands at the time of executing these patents? Was it not its duty, then and there, to execute them? Wherein, then, did the patent fail to convey title ?
The proposition, that the determination of a question of fact, by a tribunal having jurisdiction of the subject-matter,, may be retried on the merits, reversed,, and the title of an innocent subsequent purchaser held to be a nullity, in a collateral proceeding, at the instance of a sheer naked trespasser,, is one which reaches the very climax of absurdity. For the reason that there was a strict and literal compliance with the terms of the trust, we conclude that the title of the plaintiff is good, even as against the government.
5. The patent is voidable only, for another reason. There’ is a distinction between this case and cases like the- Osage land contests. In these cases the general government was the trustee, just as the state was the trustee in this case; but in that case the patent was issued, not by the government trustee, but by its officers, and their act was without any authority whatever from the trustee. The officers of the government, by misconstruction of the powers vested in them, supposed they had authority from the government to issue the patents; not so here. These patents were, in fact, issued by the trustee, the state of Kansas. The legislature, the representative of the state, directed the issuing of patents to this identical land. The state owned them, and the state executed the conveyance.
In the Osage cases not only was there a lack of any conveyance by the government trustee, but the suit for the recovery of the lands, for which the officers of the government erroneously issued the patent, was prosecuted by the government itself.
In ejectment by a purchaser at a trustee’s sale, the defendant will not be permitted to assail the trustee’s deed to plaintiff on the ground that the conditions prescribed by the deed of trust have not been complied with. (Wells v. Caywood, 3 Col. 487.)
The execution of a deed by a trustee in contravention of the trust is not void, but is valid until set aside by some equitable proceeding. (Canoy v. Troutman, 7 Ind. 155; Ryan v. Tomlinson, 39 Cal. 641.)
The defense, therefore, in this case is equitable, and can only ■be interposed as a defense to the action, based upon the patent, because of our code. Has defendant such a status as would allow him to maintain an equitable action f
6. But suppose the plaintiff’s grantor was not entitled to a patent by reason of his failure to conform to the requirements of the law — what follows? What is the status of this defendant who now calls upon plaintiff to come into court and sustain his title? As we have already shown, the only escape from the' conclusion that plaintiff’s title is good under the act of July 26, 1866, is to claim that, at the date of the act, the land had been lawfully withdrawn and placed in the hands of the state of Kansas. That instant the land not only ceased to belong to the list of lands subject to homestead, but it ceased to belong to the United States. It was no longer any part of the public domain. Even if the United States could reclaim these lands, it was, and is, improbable that it ever will do so. They were withdrawn from the list of homestead and preemption lands eighteen years ago. They were patented by the state nearly ten years ago, and have long since been disposed of to other parties. And even if the United States was able to, and should reclaim these lands, it might see proper to make some other disposition of them than to make them subject to preemption. And yet, at a time when the government, through its officers, recognizes plaintiff’s title, and persistently refuses to receive filings, defendant, without leave or license, obtrudes himself upon these lands, not under any claim of ownership, but for the avowed purpose of acquiring title under the homestead law. By his own showing he is a sheer naked trespasser. The plaintiff, on the other hand, has a patent which, is valid on its face, and he therefore has the legal title to the land. It is not necessary that his patent, to be valid on its face, should contain recitals which affirmatively show its validity. All that is necessary is, that it should be a conveyance executed in due form, which contains nothing to show that it is not valid. (United States v. Arredondo, 6 Pet. 728.)
But the patent in this case does contain recitals which, if true, render it valid. It recites a construction of the road, mentioned in the act of July 26, 1866, and the date of the execution of the patent shows it to have been within the ten years. Therefore, in the absence of proof dehors the instrument, the patent must be held valid.
Again, the patent recites the fact that the patentee has become entitled to a patent pursuant to the act of March 3, 1863. If this recital be true the patent is valid, and it can only be shown to be false by evidence dehors the instrument. There is no physical impossibility in the truth of the proposition that a road down the Neosho valley should also be a road from Emporia, to where the L. L. & G. road enters the Neosho valley. If the recitals in the patent are true, the road constructed does do just that thing. As a matter of fact, the road as constructed does fulfill the requirements of both laws. But is the status of the defendant such as will enable him to call plaintiff into court to try a question of fact as to the truth of the recitals in his patent, which is valid on its face ? Can any authority supporting such a proposition be found ?
“ If plaintiff has any right at all which is better than that of defendant, he must recover.” (O’Brien v. Wether ell, 14 Kas. 622; 15 id. 9; 16 id. 248.)
One who would assail a patent must show prior conflicting right in himself. (17 Kas. 334.)
We call especial attention to Moore v. Wilkinson, 13 Cal. 486, in which the plaintiff claimed under a patent from the United States, based on a Mexican grant. Defendant in possession claimed the land though covered by the grant. The court held that, for want of any prior interest in defendant, he could not question the validity of the patent. See also 3 Ohio, 233; 28 Pa. St. 115; 38 Cal. 83.
Recitals in a patent are conclusive evidence of its validity as against a trespasser. (Stark v. Barrett, 15 Cal. 367.) For a full discussion of the principles involved, see Doll v. Meader, 16 Cal. 325.
“A patent may be void because it issued without any authority of law, or because the title was not in the United States, or perhaps where the land was expressly reserved from sale; but the validity of the patent cannot be impeached by one resting on mere naked possession.” (Sarpy v. Pain, 7 Mo. 253.)
In view of the strong equities existing in favor of the present innocent purchasers of these lands, if not also in favor of the railroad companies themselves, it is manifest there is not a shadow of probability the government would ever seek to disturb their titles. Indeed, it may be said to be a part of the history of the country, that a powerful organization has existed for years, having no other purpose but to secure the institution of such suits. The ablest attorneys in the land have been employed, at great expense. Politicians have been elected to office on that issue. Congress, the heads of the departments, and the attorney general of the United States, have been importuned again and again — and yet all such efforts have been void. The attorney general and the secretary, after full consideration, refuse to countenance any such proceeding, and no such proceeding ever will be instituted. It was long since settled the government will not question these titles; let it now be settled that a trespasser cannot. Let the matter be settled now finally and forever, that an afflicted and distressed and long-suffering community may have peace.
1. The plaintiff must recover, if at all, upon the strength of his own, and not upon the weakness of his adversary’s title. In this case the plaintiff seems himself to be in great doubt by what right his grantors' held the land, and manifests his distrust of their paper title by insisting if that fails, upon equities which have never been developed into any written conveyance, and which have their inception, if they exist at all, from a source entirely independent of that of the record title.
The foundation of this title being the patent from Governor Osborn, the first question to be considered is, what title does said patent convey, or evidence? This patent recites that it is issued pursuant to an act of congress of March 3, 1863, (12 U. S. Stat. 772,) and an act of the Kansas legislature of February 9, 1864, (Gen. Stat. 885,) and because the M. K. & T. Rly. Co. has “constructed a railroad and telegraph line from Junction City to the southern boundary of the state of Kansas.”
Had the governor any authority to issue a patent for this land to the M. K. & T. Rly. Co. under the acts of March 3,18 63, and February 9, 1864, referred to? By examination of said acts, it will be seen that the M. K. & T. Rly. Co. was not a beneficiary under them; that no grant was made to said railway company by said acts, and the grants made thereby were not for the purpose of aiding the construction of any railroad “from Junction City to the southern boundary of the state of Kansas,” but said acts made grants to the A. T. & S. F. Rid. Co. and the L. L. & G. Rid. Co. for the purpose of aiding in the construction of entirely different systems of railroads and branches from that of the M. K. & T. railway system. It is not claimed that the M. K. & T. Rly. Co. is identical with either of the other two companies. It is an entirely distinct corporation, organized for the purpose of constructing a diffeijent system of roads, and was itself the recipient of a large and valuable laud grant from the government, (Act of July 26,1866,14 U. S. Stat. 289,) which granted lands it received in full, without and independent of the land in controversy, and of the other lands embraced in the governor’s patent.
If the M. K. & T. Rly. Co., then, was entitled to receive these lands, it is upon the theory that it- might not only'lawfully receive its own grant in full, but might also buy up the land grants of other roads; or, by building its own road near the line of another land-grant road, relieve such other road from the obligation to construct its line, make its own line answer for both, and thereby claim both grants.
If the M. K. & T. Rly. Co. claims as assignee of either of the beneficiaries under the acts of March 3, 1863, and February 9, 1864, it then becomes important to inquire whether those beneficiaries ever earned or became entitled to these lands, as it is assumed that the assignee can get no better title than its assignors had to assign.
2. As to the L. L. & G. Rid. Co.: The acts of March 3, 1863, and February 9, 1864, gave this company the first ten miles on each side of its road as a “grant in place,” but with this we are not now concerned. It also gave this company ten miles additional on each side of its road as “indemnity.” The land in controversy is embraced within the said indemnity limits. This grant was to operate only upon the completion of the road, and the act of March 3, 1863, provided:
“That if any part of said road and branches is not completed within ten years from the passage of this act, no further sale [that is, grant to the railroad company] shall be made, and all the lands unsold [not granted to the company] shall revert to the United States.”
The road was never completed. The interior department decided that the L. L. & G. company was not entitled to any indemnity lands, and refused to give it any.
Without further argument, it seems plain that the M. K. & T. could obtain nothing by assignment from the L. L. & G., so far as the indemnity lands are concerned. It seems, however, that after failing to get the indemnity lands by direct means, the L. L. & G. “did determine upon the basis of a partition” with the M. K. & T., and “relinquished all its rights, title and interest” (?) in these indemnity lands to the latter company. By some kind' of land-grant logic this enabled the M. K. & T. to obtain a patent from the governor; whereupon the M. K. & T. reconveyed to the L. L. & G., and by means of this indirection, the L. L. & G. got the indemnity lands at last, without building its road, in direct violation of the provisions of the act of 1863, and in spite of the decision of the land department. Congress afterward, by the act of July 24, 1876, (19 U. S. Stat. 101,) repudiated this transaction, reclaimed the lands,, and opened them to homestead settlement. It will be seen that the M. K. & T. really never had or claimed any interest in these lands; in obtaining them it was acting merely as the instrument or agent of the L. L. & G., and the case is the same as though the patent had issued directly to the L. L. & G. for the indemnity lands to which it was not entitled. As the particular land involved in this action is a part of the land so obtained, it would seem to be unnecessary to pursue further the question of any right of the M. K. & T. The title simply passed through the M. K. & T. as an agent or instrument of the L. L. & G.; and the real question is, what right had the L. L. & G. to the indemnity lands? This is answered by the 9th paragraph of the agreed statement of facts. The M. K. & T. does not set up or claim any title to these lands. By an agreement with the L. L. & G., it procured this patent and conveyed the lands to that company; but the M, K. & T. held the title, not in its own right, but only as trustee or agent of the L. L. & G. In the conveyances from the M. K. & T. to the L. L. & G., the former carefully omits all assertion of ownership, and all covenants that will bind it, and carefully shows that it holds and conveys the lands as trustee of the L. L. & G. under a prior agreement.
3. As to the Neosho valley branch of the A. T. & S. F. Rid. Co.: The plaintiff, however, seeing the weakness of the title of the L. L. & G., seizes upon the fact that the title passed through the M. K. & T., and attempts to strengthen and bolster up his claim by setting up a claim for the M. K. & T., as though that company had obtained the patent for itself and not merely for its principal, the L. L. & G. It is said that the M. K. & T. was the assignee and entitled to the land grant of the Neosho valley branch of the A. T.'& S. E., under the acts of March 3, 1863, and February 9, 1864. If this were so, it could not affect the lands in controversy, because they are not within the limits of that grant; but the M. K. & T. never received them under any such claim. They were taken by it for the L. L. & G. as “indemnity” lands under the “partition” agreement. An examination of the pretended rights of the M. K. & T. as assignee of the A. T. & S. F. will show the claim to be utterly unfounded.
The acts of March 3, 1863, and February 9, 1864, gave the A. T. & S. F. Rid. Co. twenty miles on each side of its proposed Neosho valley branóh, provided the same was constructed in ten years. This land grant the A. T. & S. F. Rid. Co. assigned to the M. K. & T. Rly. Co. in consideration of one dollar, and the assignment was ratified by the legislature of 1867. (Laws of 1867, ch. 102.)
The lands in controversy, however, could not be affected by this, because they are not within twenty miles of either side of that proposed road, but were beyond the end of it. This branch of the A. T. & S. F. was to come from the west and terminate at its intersection with the L. L. & G. The grant to this branch did not exténd east of the L. L. & G., but terminated at the point of intersection. The lands in controversy are eighteen miles east of the L. L. & G., opposite the point where the A. T. & S. F. branch would have intersected it at right angles, and never could have been within the grant to said branch, unless the grant extends around the end of the road. The grant was confined to the sides of the road, and does not extend around its ends. (United States v. B. & M. Rid,, 4 Dill. 297, 98 U. S. 334.)
Besides, the said Neosho valley branch was never constructed, and the A. T. & S. F. Rid. Co. had nothing to assign.
It is also claimed that, inasmuch as the M. K. & T. Rly. Co. did build a road down the Neosho valley from Emporia to a point of intersection with the L. L. & G. in the said valley, although on the other side of the Neosho river, in another county, and thirty miles from the proposed route of the A. T. & S. F. Rid. Co., that it has complied with the requirements of the acts of March 3, 1863, and February 9, 1864, concerning the Neosho valley branch of the A. T. & S. F. Rid., and is entitled to its land grant. As has been before observed, these were separate and distinct systems of roads. They were both land-grant roads, and for {he said line of road by it constructed, the M. K. & Rly. Co. received one full grant of lands.
It certainly cannot be successfully contended that when land grants have been made to separate and distinct companies, for the construction of separate and distinct roads, that the companies, by arrangement between themselves, can build one of the roads, and recover the grants for building both. Congress, in the very act under which this is claimed, seems to have expressly provided against it.
The act of March 3, 1863, declares:
“That no part of the land granted by this act shall be applied to aid in the construction of any railroad, or part thereof, for the construction of which any previous grant of lands or bonds may have been made by congress.”
There is still another claim. The plaintiff, apparently conscious of the weakness of the railroad company’s claim under the acts of March 3, 1863, ánd February 9, 1864, suggests that, inasmuch as the lands are within the indemnity limits of the grant made to the M. K. & T. Rly. Co., by the act of July 26, 1866, he can claim under this. This claim is evidently of recent origin. The government has never recognized, by patent or otherwise, any right of the M. K. & T. Rly. Co. to these lands under the act of July 26, 1866. Of course, the patent of the governor is no evidence of any title under the act of July 26, 1866, because the recitals of the patent contradict any such theory; and besides, the governor had nothing to do with issuing patents under this act. They were to be issued directly by the president. The claim is inconsistent with every act of the M. K. & T. Rly. Co. It got the lands by virtue of the “partition” agreement between itself and the L. L. & G. Rid. Co., and at once conveyed them to the latter company for $1. This would be a strange proceeding if the former company was entitled to the lands under the act of 1866.
Besides, the M. K. & T. Rly. Co. got its full grant under the act of 1866, and for it to hold these lands, also, under that grant, would be getting twenty^-seven thousand acres more than its full grant. If the M. K. & T. company had been entitled to these lands under the act of 1866, it certainly would have taken patents directly from the president, when it obtained patents for its other lands, and not entered into “partition” proceedings and accepted a patent reciting the act of 1863 as its basis. But in no event could the act of July 26, 1866, (14 Stat. 289,) operate upon these lands. ■ By the first section of that act, all lands previously granted to, or reserved for, any other railroad company, or for any other purpose whatever, were expressly excluded from the operation of the act.
The first proviso in the 4th section is:
“That any and all lands heretofore reserved to the United States by any act of congress, or in any other manner by com- • petent authority, for the purpose of aiding in any object of internal improvement, or other purpose whatever, be and the same are hereby reserved and excepted from the operation of this act.” ■
These same lands had been reserved for the L. L. & G. Rid. Co., under the act of 1863, and it had a right to them at any time in ten years, upon completing its road and branches. The land had been expressly withdrawn and reserved for said L. L. & G. company by order of the commissioner of the general land office, under the act of 1863. That these lands were effectually “reserved,” see Wolcott v. Des Moines Navigation Co., 5 Wall. 681; United States v. L. L. & G. R. Rid. Co., 2 Otto, 734; M. K. & T. Rly. Co. v. Kansas Pacific Rly. Co., 7 Otto, 497.
4. It is claimed that even if the patent was issued in violation of law, and without any authority on the part of the governor, that the defendant is not in a position to avail himself of the objection.
This requires an examination of the status of the defendant, and of his right to assail the pretended title of the plaintiff.
Of course, ordinarily in an action of this kind, under the civil code, a defendant under the answer in this ease “may prove any fact tending to show that plaintiff has not the title or right of possession.” (18 Kas. 277, 508.) Is there anything in the status of the defendant, or the peculiar circumstances of this case, which makes it an exception to this rule?
The defendant claims no title to the land except the right to occupy and purchase the same under the homestead laws of the United States, and this right had its inception subsequent to the issuing of the patent under which plaintiff claims, but also subsequent to the act of congress (July 24, 1876) declaring a forfeiture, reclaiming the forfeited lands, and opening them to homestead settlement. The agreed facts show that defendant possesses all the qualifications and has done all the acts necessary to entitle him to the privileges of a purchaser under the homestead laws.
We contend, then, that if these lands, under the laws of the United States, were subject to homestead entry, the defendant, by his settlement, acquired a substantial right to occupy them, which the courts will protect. The mere fact that some ministerial officer, without authority, has issued a patent for the land to another, cannot deprive the defendant of his right, or estop him from asserting it in defense of his possession. The case of Schulenberg v. Hdrriman, 21 Wall. 63, is cited and relied upon to show “that no one can take advantage of a non-performance of conditions subsequent annexed to an estate in fee, but the grantor or his heirs, or the successors of the grantor,” etc. It is argued that therefore the defendant cannot question the plaintiff’s right to the possession of the land; that the United States alone can do this. This may be answered in several ways: 1st. A careful examination of the acts granting these lands, in connection with the agreed facts, shows that the non-performance in this case was of conditions precedent, not subsequent. 2d. The United States has never issued any patent for these lands, or in any manner conveyed them to the railroad companies, or recognized any right in th'em, unless the refusal of the register and receiver to permit the defendant to purchase under the homestead laws amounts to such recognition. 3d. The act of July 24, 1876, (19 U. S. Stat. 101,) introduced by Hon. Jno. R. Goodin, (member of congress from this state, a resident of Allen county, and a neighbor of these settlers,) with express reference to these lands, and for the express purpose of obviating the objection now made, was a legislative declaration of forfeiture, if any such was necessary. This act applies to all lands granted by act of March 3, 1863, to the L. L. & G. Rid. Co., and “ which have not been patented to said railroad company by the United States under said grant, or earned by the completion of said road, and to which said company is not lawfully entitled," and it is provided that all such lands “are hereby declared forfeited to the United States, and shall hereafter be subject to entry only under the provisions of the homestead laws of the United States.” Now, when the act of 1876 was passed, these lands had never been patented “by the United States." They had not been “ earned by the completion of said road," and said company was not “lawfully entitled” to them. It is contended, however, that the act of July 24th, 1876, is not applicable here, because that act applies only to the L. L. & G. railroad, and these lands were patented to the M. K. & T. railroad,- and even if not patented by the United States, they were by the state, which was equivalent thereto. It is true this patent was issued to the M. K. & T. railroad, but this was by virtue of an arrangement or assignment from the L. L. & G. railroad for the purpose of partition only, and the lands were immediately reconveyed by the M. K. & T. Co. to the L. L. & G. Co., as has been before shown. The patent recites that, it is issued under the' act of March 3, .1863, and it would be strange if the L. L. & G. railroad, by assigning to the M. K. & T. railroad and immediately taking a reconveyance, could defeat the power of the government to declare a forfeiture of the land grant for failure to perform the conditions.
Unless the act of July 24th, 1876, applies to these lands, it has no application whatever. No other lands can be suggested upon which it can possibly operate. Will the court construe this statute so as to deprive it of all effect, and convict congress of enacting it as a mere idle ceremony, without any purpose whatever in view? As is said in a recent decision of this court: “ It cannot be supposed that congress went through a form of words meaning nothing; that it used language implying a grant [a forfeiture] but intending none.”-(BaJcer v. Newland, 25 Kas. 31.) The act of July 24, 1876, excepts all lands patented by the United Slates. In the phrase “ not patented to said railroad company by the United States,” the italicized words., were probably inserted as a limitation on the exception, so that the declaration of forfeiture would be clearly understood to apply to all landspaiented by any other authority, and not “earned by the completion of said road, and to which said company are not lawfully entitled.”
Some authorities are cited by plaintiff’s counsel to show that “ when plaintiff in ejectment claims under a patent, a mere intruder cannot question his’title,” and that a third party, in order to successfully assail a patent, must show a prior legal or equitable right.
These decisions are not applicable here. The defendant is not “ a mere intruder.” If it is fully conceded that the right of preemption prior to consummation by proof and payment is a mere privilege that may be revoked by the government at its pleasure, yet a bona fide settler who goes upon public land under the homestead or preemption law is far from being an intruder. He has rights that the courts will protect and enforce as against third persons. (I/ytle v. Arkansas, 9 How. 328; Whitney v. Frisbie, 9 Wall. 189; Yosemite Valley Case, 15 Wall. 77; Hutton v. Frisbie, 37 Cal. 475'; Webster v. Cooke, 23 Kas. 637; Randall v. Falkner, 41 Cal. 242.) .In this case the railroad company having failed to perform the conditions of the grant, congress declared a forfeiture, and expressly enacted that the land should be subject to homestead entry. (Act of July 24, 1876, .19 U. S. Stat. 101.) This was an invitation by congress to the people, to make homestead settlements upon the land, notwithstanding the grant of March 3, 1863, and any patents illegally issued by the governor of Kansas therefor. The defendant accepted this invitation. Now can the holder of this patent, which has been declared forfeited by act of congress for nonperformance of conditions, and which has been in fact so forfeited, turn upon the defendant so in possession by invitation of the government, and oust him, because the defendant cannot show a legal or equitable right, prior to the void patent? The defendant is in possession under license and invitation of one who had prior right, viz., the United States; and while preemption settlers, as to the government, strictly speaking have no right, but merely option or privilege, which the government may revoke at any time before title is fully consummated by proof and payment, yet as to third persons they have rights that will be enforced and protected, as we have shown above. The authorities to the effect that a prior right must first be shown in order to permit one to assail a patent, arise mostly in cases where it involves the reexamination of questions of fact or law decided by the officers of the land department or other tribunals, and not in cases where the patent is issued by an officer without any authority. In the latter case the patent is as much void when issued by the governor, as if issued by a county clerk or township trustee. Would a homestead settler be precluded . from resisting a suit to dispossess him, by one holding a patent from the township trustee, because his settlement was subsequent to the date of the patent? In other words, because he had no prior right?
There certainly is a broad distinction in this respect between a patent irregularly issued, as the result of some erroneous decision of an officer or tribunal having authority to decide, and a patent issued by an officer having no authority or jurisdiction to issue it. ' If the governor of the state, without pretense of lawful authority, should issue patents for all the public lands in the limits of his state, would all subsequent preemption settlers be precluded from attacking the patents and resisting eviction because they had no prior right ? And does it alter the case that the governor pretends that certains acts of congress give him authority, when in fact’ they do not confer any such authority? A patent that is issued by an officer having no authority may, even in the federal courts, where the law and equity systems and remedies are administered separately, be assailed collaterally for that reason in an action at law, and no affirmative proceeding in equity is necessary. (Patterson v. Winn, 11 Wheat. 380; Sherman v. Buck, 3 Otto, 209; Patterson v. Dinhgrave, 3 Sawyer C. C. 164.) If the plaintiff relies upon the act of July 26,1866, as the basis of his title, then the question of a patent is not in the way, as no patent has been issued under that act. As this act provides for a patent directly from the United States (not from the governor), of course no legal title has passed;"the claim under that act is of a purely equitable nature; and we repeat that, to make title under the act of 1866, the plaintiff must be permitted to repudiate the patent and its recitals, which his grantors received and placed upon the public records, and it must be held that the M. K. & T., under an act granting to it a certain quantity of lands, was entitled to that full quantity, and 27,000 acres besides.
The position of the defendant, we think, is analogous to that of one who should make improvements and acquire the rights of a settler upon the state school lands under § 195, ch. 92, Comp. Laws 1879, and ejectment should be brought against him by a prior purchaser from the state, who had neglected to perform the conditions of his contract. Such failure is ipso facto a forfeiture of the contract of purchase, and no judicial or legislative action is necessary. (State v. Fmmert, 19 Kas. 546.)
A critical examination of the facts of this case will show that it is upon the question of forfeiture, more nearly within the decision in State v. Fmmert, supra, than within the case of Schulenburg v. Harriman, supra, upon which the plaintiff so strongly relies. But add to the case of the supposed school-land settler, the element of a legislative declaration of forfeiture (similar to the act of July 24, 1876,) of the prior settler’s right under the contract: can there be any doubt that the subsequent settler could avail himself of the forfeiture by assailing the prior settler’s contract, in order to resist eviction in an action of ejectment brought against him by such prior settler? Indeed, he could not only resist eviction, but, if out of possession, could maintain ejectment against the prior settler. (Balter v. Newland,, supra.)
We contend that the question presented in this case by the agreed statement of facts, for the decision of this court, is simply this:
Where congress has granted lands to the state for the benefit of a railroad company, upon the express condition, however, that the grant shall not operate, but shall lapse, and the lands revert to the United States, unless such railroad company shall construct a certain line or system of railroads; and such railroad company forfeits all right to the lands by failure to construct the roads, but the governor, notwithstanding, issues a patent for the forfeited land to such railroad company, or its assigns, and congress thereupon declares a forfeiture of said grant, reclaims the lands, and enacts that they shall be subject to homestead entry, can a qualified settler, who, under said invitation of congress, has made the requisite settlement and improvement upon said lands, under the homestead laws, successfully assail said patent, and resist eviction, in an action of ejectment brought against him by the holder of said patent title?
We insist that the answer should be in the affirmative.
As to the claim of title made under the act of July 26,1866, perhaps a different question is presented; but that claim seems to be superimposed on so slender a foundation that it scarcely requires sober discussion. No patent has ever been issued under that act, and indeed no such claim to these lands has ever been before made. The act specially excepts all lands previously reserved for any purpose, and these lands were clearly reserved under the act of 1863. This court, passing upon this identical act of 1863, holds that it was a grant in prcesenti; that the title vested in the state as trustee, upon the definite location of the road, before any withdrawal was made, and even though no withdrawal ever was made. (A. T. & S. F. Rid. Go. v. Bobb, 24 Kas. 673.) How is it possible that after the title to the land by previous act had been vested in the state, a subsequent act which expressly excepted from its operation all lands previously reserved, could operate upon them?
OP THE DEPENDANT’S TITLE.
I. Williams has a perfect equitable title against the United States, and against all claimants under the action of the officers of the government, and a legal title against all others. This is shown by several considerations:
1. In Mooney v. Olsen, 21 Kas. 691, itis.decided that “possession of real estate with a claim of ownership is not only evidence of title, but is title itself in a low degree.” (2 Bl. Com. 195; 15 Ohio St. 419; 5 Kas. 27; 3 Ohio, 241; 25 Wend. 389; 18 How. 88.)
2. This title “in a low degree,” is so valuable that, when sufficiently continued, it becomes perfect even as against the state or the United States. Where there is a long undisturbed possession, the laxo presumes a grant to the occupant from the state or from the United States.
7 Am. Law Record, 411, collects authorities: 7 B. Mon. 279; 12 Yes. 252; Cowp. 102, 214; 36 Yt. 503; 10 Johns. 377; 6 East, 208-219; 4 Mason, 397, 402; 4 Day, 244; 10 Ohio, 524; 1 id. 330; 20 id. 241; 8 id. 518; Tudor’s Leading Cases, 114; 1 Phil. Ev. 442; 7 Am. Law Record, 431; 1 Pa. 29; 7 Wheat. 59; 8 Cranch, 462; 8 Eed. Rep. 402. See also Angelí on Limitations, §§ 3, 4, 9, 10; Starkie Ev., part 4, p. 122; 2 id. 663 (5th ed.); Washburn on Easements, 102, 103 (66, 68, 72.)
The presumption of a grant is imperative. (22 Am. Law Reg., O. S., 72; Washburn on Easements, [70, 105,] 114; lGr.Ev., §17; 5 Ohio, 455; 15 id. 529; 10 Serg.'& R. 69; 6 Mass. 90; Cowp. 102; 1 Term R. 270; 19 Wend. 309; 8 Pick. 504; 11 East, 372; 1 Caines, 90.)
The assignment of a land warrant is presumed. (4 Wheat. 343 ; 7 id. 243; 7 B. Mon. 279; 20 Ohio, 231; 8 id. 519.)
This court has, in Mooney v. Olsen, supra, stated the prinple which underlies the whole doctrine of presumed grant; and it has thus given its sanction to a principle which does more to promote justice, secure repose to titles, and thereby advance the prosperity of the owners of the soil, than any other rule of law found in all the books and decided cases.
3. The title of the defendant is, by reason of compliance with the homestead acts, a perfect equitable title. (13 Wall. 91; 4 id. 232; 13 id. 72; 6 id’. 418; 4 id. 218; 15 Ohio St. 419; 6 Johns. Ch. 418; 3 How. 450; 1 Pa. 501; 6 Serg. & R. 118; Op’n of Att’y Gen’l, July 15, 1881.)
This acquisition of. title is impliedly recognized in § 2297 of the Revised Statutes, which declares that, on certain conditions subsequent, the land “shall revert to the government.” And upon the doctrine of Sahulenberg v. Harriman, 21 Wall. 63, unless the United States shall by judicial proceeding enforce a forfeiture, “the title remains unimpaired in the grantee.” The act of July 24, 1876, (19 U. S. Stat. at Large, 101,) and the Revised Statutes, §§2257, 2289, give a right to secure a homestead. These are to be liberally construed. (Smyth on Homestead, '§§ 7, 11, 51-62, 145, 463, 519, 522, 525.)
The expression, “lands belonging to the United States,” must be construed to include all lands to which it has absolute title at law or in equity, and all which it has any right to reclaim. If the United States has a reversionary interest in land, such land “ belongs” to the United States. (Parsons on Contracts, 6th ed. 528; 4 Kent’s Com. 149, 354.)
For some purposes, lands in Indian occupancy, even, are “public lands.” (95 U.S. 517, 524; 18 How. 173; 19 Wall. 591.) For other purposes, not. (17 Wall. 232, 247; 92 U. S. 733; 11 Kas. 323.)
The defendant, then, has a perfectly equitable title.
Frisbie v. Whitney, 9 Wall. 187, was not a homestead case, but as to a preemption claim it is said: “This inchoate right may be protected by the courts against the claims of other persons who have not an equal or superior right, but is not valid against the United States.” (9 W. & S. 197; 96 U. S. 530.)
II. The defendant’s title is a complete defense of his possession, unless the plaintiff shows in himself a perfect title. (7 Wheat. 161; 10 How. 267; 7 id. 846; 9 Pet. 632, 654, 655.)
Any change made by § 595 of the civil code of Kansas, does not materially affect the result, since there must be a perfect legal or equitable estate. (10 Kas. 364; 12 id. 12; 13 ’id. 232; 14 id. 622; 15 id. 9.)
The holder of an equitable title can always defeat the holder of & naked legal title. (18 Ohio, 326;- 20 id. 556; 5 id. 32; 8 Ohio St. 431; 11 id. 442; 24 id. 445,479; 12N.Y. 266; 29 id. 598; Bliss, Code PI., §§ 349, 351; Pomeroy, Code PL, §§ 87.)
III. The title of the defendant can be used, not only by way of defense, but by way of attach, to defeat any pretense of claim by the plaintiff; as, for example, to show — a. That the pretended title of the plaintiff was procured by a fraud upon the law, or in violation of it, and so is void; b. That the action of the officers who pretended to give the title was unauthorized, and so the evidence of title is void, both on its face and for matter dehors; c. That any title asserted by the plaintiff was procured under circumstances which require a court of equity to declare him a mere trustee for the defendant; and so the court will decree a conveyance from the plaintiff to the defendant, and quiet the defendant’s title. (Kas. Civil Code, § 594; 19 Ohio gt. 471; 17 id. 75; 34 id. 420; 2 id. 540; 31 Cal. 274; 5Kas. -27; 8 id.499; Hid. 59; 13 id. 481; 14 id. 301; 18 id. 508; 16 id. 250; 17 Wall. 211; 6 id. 482; 1 Wis. 527; 18 How. 88; 22 id. 144.)
In Wood v. Bid. Co., 11 Kas. 348, it was held that a mere trespasser would not be protected against a claim under a patent. The holder of a naked equity has the evidence of an equitable title without right to it, and the proper court will divest his title in favor of one lawfully in possession. The holder of a perfect equity has. a title so full that, a court of equity will decree to him the legal title which any other person may have.
If in this case Neer had by any means obtained a legal title, (which he has not,) Williams, having complied with the homestead law, would be entitled to a decree to divest Neer of his title, and to invest Williams therewith. (13 Wall. 72; 1 id. 109; 7 id. 219; 20 How. 8; 22 id. 192; 2 Black, 559; 8 Cranch, 229, 462; 9 id. 164; 4 Wheat. 488; 2 Pet. 201; 1 Story’s Eq., 11th ed., §§ 694, 701, 702, 825; 2 id., §§ 825, 853; 2 Yes. Jr. 483; 7 id. 414; 5 Johns. Ch. 118.)
There are cases sui generis, resting on principles peculiar to local statutes. (3 Ohio, 233; 16 id. 61; 2 Ohio St. 216, 540; 7 Wheat. 212.)
Patents granting land are either valid, voidable, or void; but in either of the last two classes; courts will furnish relief. The defendant has such title as enables him to defend, and cancel any claim of plaintiff. (Kas. ’Civil Code, § 596; 5 Kas. 483; 8 id. 527;' 13 id. 232; 18 id. 207, 508.)
IV. 1. A party in possession of land, even without claim, color, or shadow of title, can successfully defend in ejectment against a title alleged under a void patent. A patent issued without authority of-law, or in violation of law, or for lands not authorized to be sold, or which are reserved from sale, is not only voidable, but void. (Simmons v. Wagner, 101 U. S. 260. See also 17 Wall. 211; 92 U. S. 733; 1 Op. Attys.-Gen. 420; 2 id. 186; 5 id. 9; 2 How. 284; 18 id. 19, 87; 21 id. 431; 3 id. 650; 9 Ala. 594; 3 id. 47; 2 Wall. 525; 6 id. 160; 9 id. 96; 13 Pet. 498; 3 McLean, 151; 6 Mo. 106; 11 id. 585; 14 id. 585; 39 id. 357; 10 Johns. 26; 7 S. &M. '363; 8 Barb. 253; 2 Black, 554; 1 id. 132; 1 Wall. 109; 5 Minn. 223; 24 How. 394; 20 id. 6; 18 id. 43; 22 id. 144; 19 Pa. St. 38; Report of Com. of General Land Office, 1868, p. 126; 9 Cranch, 87; 5 Wheat. 301; 91 U. S. 330; 13 Wall. 72; 101 U. S. 473.)
This principle is .recognized by congress in the acts providing for the return of purchase-money in case of unauthorized sales. (Acts, March 3, 1819; May 21, 1824; Jan. 12, 1815; May 24, 1828; 1 Lester, 34, 36, 38, 40, 667; 17 Wall. 32; 98 U. S. 118; 96 id. 530f)
Whatever the state or its officers might do without the authority given by congress, or in violation of such authority, would be unauthorized, unlawful, and void; and all persons would be chargeable with notice of the illegality of such acts or proceedings. (9 Wall. 45; 13 id. 72; lOWis. 518; 18 Md. 276; 12 Iowa, 142.)
2. It is conceded by plaintiff’s counsel that the patent may be shown to be void by evidence dehors. The cases above cited support the doctrine. (18 How. 87; 22 id. 144; 92 U. S. 733, 760; 7 Copp’s Land-Owner, 69, August, 1880, No. 5, Kendrick’s Case; Chamberlain v. Marshall, 8 Fed. Rep. 402; 3 Sawyer Ct. Ct. 164; 11 Wheat; 380; 5 id. 303; 93 U. S. 209; 5 Cranch, 196; 9 id. 99; 2 How. 590; 2 Wall. 525.)
3. It follows that the defendant can avail ’ himself of a defense which estops the plaintiff from asserting a valid title.
OF THE PLAINTIFF’S TITLE.
The plaintiff claims under the acts of congress of March 3, 1863, (12 Stat. 772,) and July 26, 1866, (14 Stat. 289,) and under certain acts of the Kansas legislature.
I. If upon these any doubt exists as to whether a right has been vested in the plaintiff, he has no title. (9 Op. Attys.Gen., 59, 271; 13 id. 363; 11 Pet. 544; 6 id. 738; 8 How. 581; 13 id. 81; 23 id. 88; 16 id. 435; 1 Black, 380; 92 U. S. 470; .2 Barn. & Ad. 792; 7 M. & G. 253; 27 Pa. 339.).
II. The plaintiff has no title under the act of congress of March 3, 1863. (12 Stat. 772.)
First, as to lands grafted “in place:”
This act makes a present grant “in place” of alternate odd sections within ten miles, “First, of a railroad from Leavenworth, by the way of Lawrence, and via the Ohio City crossing of the Osage river, to the southern line of the state, in the direction of Galveston bay, in Texas with a branch from Lawrence, by the valley of the Wakarusa river, to the point on the Atchison, Topeka & Santa Eé railroad where said road intersects the Neosho river. Second, of a railroad from the city of Atchison via Topeka, to the western line of the state, in the direction of Fort Union and Santa Eé, New Mexico, with a branch from where this last-named road crosses the Neosho, down said Neosho valley to the point where the said first-named road enters the said Neosho valley.”
But no title vests without the completion of the road. (22 Wall. 444, 464.) This grant will overreach all subsequent claims of title; but if no road is ever located, the grant will be inoperative, so far as the railroad company is concerned, because there is nothing to attach the title to any particular tract. The grant is, however, still operative to reserve the lands from other and later “ land-grant” acts. (92 U. S. 741; 97 id. 496; 15 Kas. 24.)
The title does not attach to lands within the granted limits until the definite location of the line of the road. (7 Otto, 491, 496; 9 Wall. 89; 21 id.'44, 60; 1 Black, 358.) If the state could ever take any title, it would be upon a trust. The act of 1863 declares — “That the said lands, hereby granted to said state shall be subject to the disposal of the legislature thereof, for the purposes aforesaid, and no. other.” Here is a trust.
By the act of February 9, 1864, of the Kansas legislature, the state accepted the grant, and did not grant, but “ agrees to grant, bargain, and sell to” the Leavenworth, Lawrence & Fort Gibson railroad company (now theL. L. & G. Co.) the lands- granted by congress for the main line of the L. L. & G. railroad, and the Wakarusa river branch, on condition that said company “shall construct” said road and branch. By that act also, the state accepted the grant for the Atchison, Topeka & Santa Fé line, and the Neosho valley branch, and did not grant, but agreed, on like conditions, to grant the lands given by congress for this line and branch to the Atchison, Topeka & Santa Fé railroad company.
Second, as to indemnity lands: These occupy a different position from lands “in place.” As to the odd indemnity sections between the ten and twenty-mile limits, the act of 1863 did not make a grant in prcesenti. -Its provision is: “And when the governor of said state shall so certify, and the secretary of the interior shall be satisfied, that the whole of said roads and branches and telegraphs are completed, the said state may cause to be sold [granted to the railroad companies] all the remaining [the indemnity] lands granted and selected for the purposes indicated in this act situated .within the said limits of twenty miles,” &e. But indemnity lands were not granted at all. Authority was given on certain conditions to select and certify lands; and if the conditions existed, so as to authorize the selection and certification, then these official acts would vest in the state a title in trust. No title did or could pass to the state or to any railroad company until after several conditions existed: as (1) the completion of “the whole of said roads and branches and telegraph; (2) that some of the lands granted in place had been sold, preempted, or homesteaded ; (3) the selection and certification of the indemnity „ lands by the secretary of the-interior. This is shown by— (1) the act of congress, (2) the legislation of Kansas, and (3j the agreed facts.
Congress recognized the rights acquired by settlers, under the acts of March 3, 1853, and March 27, 1854, (10 U. S. Stat. 244, 269.) Unless and until each of these conditions was complied with, no title to any odd indemnity section could pass; but even if title could pass sooner to the state, it would be in violation of a trust, and would be set aside on the application of any party in interest. The reason given for holding that the lands granted in place were granted in prcesenti, is that, as to them, the act of congress says: “That there be and is hereby granted.” (97 U. S. 496.) The words, “ that there be and is hereby granted,” apply only to lands in place, not lo indemnity lands. The latter pass only by authorized, selection. This was perfectly well understood by the Kansas legislature, and is recognized by § 3 of the Kansas act of July 9, 1864.
Did either railroad company acquire any title?
I. As to the L. L. & G. Rid. Co., the state of Kansas never acquired any title.
1. This company never completed its road or branch, so as to earn any indemnity lands. The supreme court has said (92 U. S. 733) that the location of a road is necessary to give it title or “attach it [title] to any particular tract of lands granted in place.” For the same reason the completion of the road, so as to earn the indemnity land, is necessary to “attach a title” in the state to any particular tract of land.
2. As to the odd indemnity sections, the state of Kansas had the “possibility of an interest” — a right to obtain a title on the happening of contingencies. But this possibility never vested — it was always contingent; and a “ vested possibility” is not a title. (1 Pet. 193, 213; 1 Parsons Cont. [6th ed.] 323; 3 Term R. 88; 3 Meriv. 667.)
The state had no vested or salable title, because its interest in the lands might never be, as it was not, so perfected as to vest a title. (1 Pars. Cont. 523, note l; 32 Ohio St. 502.)
3. The fact that this naked possibility existed, and continued in 1866, made it proper that congress should reserve all the odd indemnity sections from the grant made by the act of July 26,1866, (14Stat. 289,) as it did by declaring therein —“That any and all lands heretofore reserved . . . for the purpose of aiding in any object of internal improvement, or other purpose whatever, be and the same are hereby reserved and excepted from the operation of this act” [grant]. And they were reserved by. the withdrawal letters of the commissioner of the general land office of March 19, 1863, and April 30, 1867.
4. The patent issued by the governor of Kansas, May 19, 1873, shows that no title vested in the state or in the L. L. & G. Rid. Co. The so-called patent is made to the M. K. & T. Rly. Co. for this land, because, as it says, that railroad company, and not the L. L. & G. company — “is entitled” to the land “ under the provisions of the act of congress, approved March 3, 1863, . . . and of the act of the legislature of the state of Kansas, approved February 9, 1864, . . . as certified by the commissioner of the general land office, and approved by the secretary of the interior April 10, 1873,” &c., &c.
There was no pretense of a right under the act of 1866. There was no pretense of a grant made because of anything done by the L. L. & G. Rid. Co., or by the A.T. & S. F. Rid. Co. The so-called patent assumed only that the M. K. & T. Rly. Co. had a right under the act of congress of March 3,1863, and under the Kansas act of February 9,1864.
II. As to the A. T. & S. F. Rid. Co., the state never acquired any title to indemnity lands.
1. The land in controversy is not within twenty miles of either side of the road or any branch. In 97 U. S. 491, it was decided that the grant only passed lands “ within specified limits on each side of the line” of road. The construction referred, to is followed in the practice of the general land office. (98 U. S, 334.)
2. Each and all of the four reasons specifically given, and others in opposition to the claim made on behalf of the L. L, & G. Rid. Co., equally apply against that made on behalf of the A. T. & S. F. Rid. Co.
3. Under the act of congress of March 3, 1863, and the Kansas act of February 9, 1864, the L. L. & G. Co., or the state for it, had the sole right to acquire a title to the odd indemnity sections east of its road line.
III. There is a pretense of title in the M. K. & T. Rly. Co., and the plaintiff’s so-called title is based thereon, to wit: the so-called assignment of March 19) 1866, of the A. T. & S. F. Rid. Co., of its franchises and land grant under the act of March 3, 1863, for its Neosho valley branch. These facts cannot give the M. K. & T. Rly. Co. any title.
1. Under the act of March 3, 1863, and the Kansas act of February 9,1864, neither the state nor the A. T. & S. F. Co. had any title to any indemnity land. The railroad company, therefore, had nothing to assign. Ex nihilo nihil fit. The state of Kansas was in no better condition.
2. The attempted assignment by the A. T. & 8. F. Rid. Co. to the M. K. & T. Rly. Co., and the attempted ratification by the legislature of Kansas, by its joint resolution of February 26-, 1867, were void. Atcorporation cannot, without express legislative authority, sell any franchise. (10 Ohio St. 387; 22 Law Rep. 140; 30 Yt. 190.)
The legislature had no power by a joint resolution to ratify an assignment. (Const, of Kas., art. 2, §§15, 20; art. 12, §1; 1 West Ya. 176; 1 Bl. Com. 185, 186; 15 Kas. 22.) The validity of the assignment was neither considered nor decided in 97 U. S. 499.
IY. The M. K. & T. Rly. Co. has no. title to the land in controversy, under the act of July 26, 1866, upon which it now mainly relies. But this act can give no title. No patent was issued by the United States. The act requires such a patent as evidence of title; hence, none can pass without it.
The M. K. & T. Rly. Co. accepted a patent from the governor of Kansas, declaring that it “is entitled under the provisions of the act of congress approved March, 3, 1863.” This is a flat denial of any claim under the act of 1866. The plaintiff, claiming under this company, which claimed under the governor’s patent, is estopped from asserting any title under the act of July 26, 1866. (1 Gr. Ev., §§ 23, 189; 2 Mete. 363; 10 Paige, 170; 3 H. & J. 410; 12 G. & J. 31.) The governor’s patent recites only the act of 1863. (6 Pet. 612; 4 id. 83; Wade on Notice, §§308,311; 10 Ohio, 468; 4 id. 446; 11 id. 192; Herman on Estoppel, ch. 9, §§ 229, 237; 11 How. 333.)
The plaintiff is a privy in estate. A purchaser may in fact be ignorant of the recitals in his claim of title, but in law such notice “is actual, though it clearly rests upon- a presumption of law.” (Wade on Notice, §§308, 313, 324, 273, and note; 102 Mass. 375; 7 Allen, 16; 7 Paige, 421; 2 Pa. St. 32, 439; 7 Yes. Jr. 152; 7 Conn. 324; 3 How. 333, 410; 21 id. 495; 10 id. 348.)
The act of July 26, 1866, by its own terms, expressly “reserved and excepted from the ■operation of this act” all lands in any manner reserved, for any purpose, by any prior act. The act of March 3, 1863, expressly reserved these lands from any subsequent grant; also by the letter from the commissioner of the general .land office, withdrawing them from market, March 19, 1863, and by his letter of March 19, 1867. It was so determined, in effect, by the secretary of the interior. (Land Office Rep. 1879, pp. 89-94; Copp’s Land-Owner, Nov., 1877, p. 119.) It was so determined by the U. S. supreme court. (5 Wall. 681; 92 U. S. 734; 97 id. 497. See also 15 Kas. 9.)
The M. K: & T. Rly. Co., having had one grant of lands, had no authority to receive the benefit of any other grant, and was prohibited by the act of March 3,1863, from receiving such benefit. No title passed to it, by reason of the fact that the lands were “jointly selected” “on the 18th day of August, 1872,” by it and the L. L. & G. Rid. Co., “as indemnity lands, which they claimed under the act of March 3, 1863”
Y. The case of Schulenberg v. Harriman, 21 Wall. 63, presents no such difficulty as that suggested by counsel for plaintiff.
1. If a road is not completed within the time required by statute, lands in place are forever lost. No act of forfeiture is necessary. (6 Wis. 120; 1 Pet. 655, 665; 2 Dallas, 304; 6 Otto, 544; 2 id. 49, 68; 16 Wall. 203, 220; 2 Chitty on Contracts, 11th Am. ed. 1068-9. No right attaches to indemnity lands until the same are selected. (9 Otto, 382; 13 id. 739; 6 id. 37; 2 Wheat. 196; 12 How. 59; 1 Wis. 527; 1 Conn. 79; 21 Wall. 44, 63.)
2. There has been a specific and distinctive forfeiture of title to all lands which ever passed to the state, in trust, for railroad companies, when these failed to earn such lands by the act of July 24, 1876. (19 Stat. 101; 14 Op. Attys.-Gen. 430; 3 Wheat. 1; 21 Wall. 63.)
3. The secretary of the interior decided, April 29, 1876, in the Florida Rid. grant, that no title can vest when no road is located, (1 Wash. Rep. 67, Dec. 1881,) and that no forfeiture was necessary.
VI. The defendant has, by his homestead claim, an equitable title, and is therefore in a position to make defense and demand relief. (13 Wall. 72; 17 id. 232; 16 Kas. 250. See also 4 Kent’s Com., 4th ed., 122, 123; 1 Kent, 473.)
But if the defendant cannot assert a right of forfeiture, as a right under the United States, he can still hold this land. The state of Kansas has no such right to object as the United States might have. The state has violated a trust, and no one claiming under such a wrong-doer can avail himself of the benefit of a wrong.
The decision of this action affects the Kansas City, LaA\renee & Southern Kansas railroad company in this wise:
This railroad company is the purchaser of all the assets, including lands, railroad, and. other property of the Leavenworth, Lawrence & Galveston railroad company. The Galveston company made a mortgage upon all its property, to secure the payment of a large amount of bonds issued by it. Not paying the interest on its bonds, a suit was brought against it, by the trustee named in its mortgage, to foreclose the same for the benefit of the numerous bondholders, in the circuit court of the United States for the district of Kansas. A receiver of all the mortgaged property was appointed by the court, who took possession of the same. Afterward a decree of foreclosure was entered in the suit, and all the property covered by the mortgage was sold to certain individuals, who in turn sold the same to this railroad company. The Galveston company and the Missouri, Kansas & Texas railway company were recipients of government lands, granted to the state of Kansas to aid in building their respective roads. These grants of lands in Allen county overlapped each other, and hence a conflict of claims between the companies, both as to lands within the granted and indemnity limits of the two grants. This conflict led to a mutual arrangement, whereby the Galveston company conceded lands undoubtedly falling to it to the other company, and received in lieu thereof certain lands patented to the other company. Among the lands received on exchange was the tract of land in question in these overlapping grants, and lying outside of the granted limits of the Galveston company. The Galveston company sold quite a proportion of these lands, before the beginning of the suit in the federal court "above mentioned, to numerous settlers and other parties, among them the plaintiff in this action. The remainder of the lands was sold as aforesaid, by the decree of the court, and the title finally fell to the railroad company presenting this brief.
As to the lands sold by the old company, the purchasers are in a very unfortunate position, if there was no title to these lands in the Galveston railroad company, since that company is entirely insolvent, and in fact dissolved. Whatever question of hardship as to these lands there may be, it undoubtedly falls, not upon those who are seeking to defeat the title of the purchasers, but upon the men who have bought these lands and paid full value for them, and many of whom are on them with their homes and improvements. It is conceived; however, that the day has gone by for determining titles to real estate by making appeals to the supposed hardship of anybody.
Some things may be conceded in this case without debate. The land in question was not the land of the Galveston railroad company at any time before it received title thereto by deed from the Missouri, Kansas & Texas railway company. It was outside of its granted limits, though within its indemnity limits; but not completing its road as provided by the act of congress, it lost its indemnity lands.
The title of the Missouri, Kansas,& Texas company to the lands in question flows from the grants of the acts of congress of March 3, 1863, and of July 26, 1866. If, by a fair construction, that railroad company became entitled to these lands, by either one of these acts, then the plaintiff’s title is good as against a mere trespasser. (A. T. & S. F. Bid. Co. v. Boolcwood, 25 Kas. 302.)
While the patent given in evidence recites that the state grants the land under the act of congress of March 3, 1863, yet if the Missouri, Kansas & Texas railway company should have received direct from the United States the title through its compliance with the act of congress of July 26, 1866, the misrecital in the patent, or the unauthorized certificate of the land to the state of Kansas by the secretary of the interior, will not prejudice the title conveyed, for at the last it has rested through an erratic channel in the true owner. Neither is it incredible that this company, by virtue of its purchase, by consent of the state of Kansas, of all the rights and franchises of the Atchison, Topeka & Santa Eé railroad company, as defined by the act ofi congress of March 3, 1863, and the act of the legislature of the state of Kansas of February 9, 1864, accepting this act of congress, in the Neosho valley road, as well as by its fulfillment of the provisions of the grant of July 26, 1866, could well comply, with both acts, and thereby become under either entitled to the land.
These two sources of title are to be briefly considered:
1. It-is manifest that the controversy as to the first act turns upon the interpretation to be put on the words in the granting section of the act of March 3,1863, namely: “ With a branch from where this last-named road [Atchison, Topeka & Santa Fé] crosses the Neosho, down said Neosho valley to the point where the first-named road enters the said Neosho valley.” The first-named road is the one, of course, that was aided to be built from Leavenworth south by Lawrence to the south line of the state, in the direction of Galveston bay, Texas. The act of congress clearly contemplated a series of connecting roads. While the points of connection are given different designations, as “intersecting the Neosho river,” “crosses the Neosho,” and “Neosho valley,” yet as the thing aimed at was clearly a union in intercourse of those parts of the state aided to railroad facilities by this act, it is manifest that the words above quoted are used interchangeably.
Now the chief error in all the laborious arguments filed by counsel for the defendant lies in confining and restraining these words — these descriptions of connecting points to that mentioned in the twenty-second agreed statement of facts to “that point where said road first enters upon the land drained by said river or its tributaries.” The fourth fact agreed to is to the effect that this land would not have been within twenty miles of this Neosho branch of the Santa Fé road had it been constructed to a point where the Galveston road first enters upon land whose waters finally find their way to the Neosho river. Probably not. That point, as claimed in the map furnished by counsel on the other side, is Colony, on the high divide between the waters of the tributaries of the Neosho river and those of the Marais des Cygnes — a place some twenty or more miles north of where the Galveston road crosses the Neosho river. It hardly needs argument to say, that the very topography of the country over which these roads were to be built — the main direction of the Neosho river, the general direction the Galveston road was to pursue, forbids the idea that either congress or the state of Kansas required these roads to connect at an inaccessible point on a “divide,” or on the first declivity towards the Neosho river. A wide latitude was from the neeessity’of the case to be given in making this junction between two roads that could not, from the very routes given, be at right angles to each other, but must approach to a junction by an acute angle. Emporia, on the Neosho river, the initial point of the Atchison, Topeka A Santa Fé branch, lies from Lawrence about seventy miles. From these two points, the roads run, one nearly south, the other southeast, until they join in the Neosho valley. The point of union contemplated by the act of congress must have been one where the roads would naturally and' reasonably come together in the Neosho valley. The act of the legislature of the state, as referred to in the twelfth fact, shows what was in the mind of the state, wherein it provides for the building of this branch “down the Neosho valley to where the Leavenworth, Lawrence & Fort Gibson railroad may intersect the Neosho valley.” Yet no one doubts that the point of union described in this act is precisely that mentioned in the former act of the legislature, and the act of congress.
It cannot be maintained for a moment, that congress and the legislature of the state intended that this branch of the Atchison, Topeka & Santa Fé road should run down the Neosho valley from a crossing on the Neosho river to a place many miles south of where the Galveston road first touches lands whose waters drain toward the Neosho tributaries, and thence run north to meet the Galveston road. The act clearly meant that this line should belong to the Galveston road, and not to the other; that is, the Galveston road should run south. The route for this branch road is given, and its terminus; it. was to begin at a crossing of the Neosho river, thence it was to run down “said Neosho valley” to meet the other road. This point of union is not the first land this last road touches whose trend is toward that valley, but that place where it has fully entered the valley, and to which the branch road could reasonably and naturally be built. The wedge-shaped tract of land lying between the two railroads is, in fact, very high and uneven, and a line drawn-at right angles from Colony, westward to the Neosho river, would carry a railroad over altitudes and across valleys such as have not yet been surmounted in Kansas, and certainly such a line would not and could not be held as being “down the said Neosho valley.” Nowhere did the act contemplate that this branch road was to run up the valley.
Hence it follows that all speculation as to the title of the land in question, based upon the hypothesis that the point where the Galveston road enters the Neosho valley is where it “first enters on land drained by said river and its tributaries,” is as mythical as though it had been supposed the point to be in the Marais des Cygnes valley or any other point not within the manifest intention of congress and the state.
The branch to have run to that point would have not only run “down the said Neosho valley ” all the length of its grant, but would, as to part of its line, have run up the valley, and thus have duplicated the line of the Galveston road. And if built to that point, at a right angle to the line of the Galveston road from the Neosho valley, part of the way it naturally would have touched tributaries of the Marais des Cygnes. Yet the whole frame of the defendant’s argument depends upon the fallacy of supposing the junction of these two roads to have been at the first declivity toward the Neosho tributaries the Galveston road should touch.
The natural drain of the waters from Colony is first, I believe, into Deer creek, a considerable stream running through a broad and fertile valley; and the railroad, after running down a long and heavy descent from Colony, crosses this creek several miles east of the Neosho river. Now in a large sense, this creek is in the Neosho valley, as the Neosho river is in the Arkansas valley; but no one, in journeying south from Colony, would say he had reached the Neosho valley before crossing this Deer creek valley.
At all events, from all the acts of congress and the state legislature, it is beyond dispute that the junction of the two roads was intended to be at some place in the Neosho valley, wheré the two roads pursuing their natural and reasonable routes, the one its southerly direction towards Galveston bay and the other its southeasterly direction “down the said Neosho valley,” would connect.
The above reasoning disposes of many features of the agreed facts, since they are all b§sed on a supposed theory inconsistent with the grants under consideration.
The court will observe that this twenty-second fact does not say that the act of' congress meant that stated by it, but only that the whole basis of the agreed facts is that therein set forth.
2. It need hardly be said that a patent from the United States is presumed to have been regularly issued, and is conclusive against the government and all claims under prior titles. (Stone v. United States, 2 Wall. 535; Hughes v. United States, 4 id. 236; Hoofnagle v. Anderson, 7 Wheat. 214.) ■
3. What are the rights of the Missouri, Kansas & Texas railway company under the act's of March 3, 1863, and July 26, 1866, and the acts of the legislature of the state of Kansas ? It does not seem open to debate that the rights and privileges granted the Atchison, Topeka & Santa Eé railroad as to this Neosho valley branch, vested by the consent of the state of Kansas, the beneficiary and legal owner of the grant of lands mentioned in the act of congress of March 3, 1863, in the Missouri, Kansas & Texas railway company. The title to these lands vested in the state of Kansas, and was subject to its absolute disposition. (Sohulenberq v. Harriman, 21 Wall. 62.)
The state consenting, and its grantee, that the grant for this branch road should vest in the Missouri, Kansas & Texas railway company, no one else can question it. If the Missouri, Kansas & Texas company built this branch road, as required by the legislature of the state and by the act of congress, its title to these lands was perfect. The patent recites that it did so. What is there to disprove it? Its road is built “ down the Neosho valley,” just as the branch was to be built; it built the road within the time required by the act of congress; these lands were not within the granted limits of either road, but are within the indemnity limits of both roads. The withdrawal of lands under the act of congress of March 3, 1863, by the secretary of the interior, was for the benefit of both roads. It was made on what he supposed might be the line$ of all the roads; there is nothing to show what the “probable” lines of either road were as to the lands in question, save that it was in the supposed granted limits of the Galveston road, and it doubtless was within the supposed limits of the Neosho valley branch, since now it is “ agreed ” to be within the twenty miles of the branch road and eighteen miles from the Galveston road. It is probable at and near these Allen county lands the roads were rapidly coming to a common junction.
There is no pretense that the Missouri, Kansas & Texas company has received more lands than its grant covered — in fact, with all its indemnity lands, it still falls far short of what it is entitled to. It is hardly worth while to say that these lands, having been reserved for both companies, that the right of each did not attach, only to an undivided moiety of each tract of land, for as in this case, the failure on the part of one company would leave the other company an owner of a moiety and the United States the owner of the other moiety. And if these lands were owned by moieties as to tracts, still there is nothing to show that the Missouri, Kansas & Texas company did not, under that rule, own the lands conveyed to it. The fair presumption is, that conceding it only obtained half the lands in the overlapping limits, that it has only received such lands as it is entitled to.
Where two land grants of same date overlap each other, and one fails to comply with the terms of the grant and the other does comply, by what rule of construction can it be said that the complying company, earning the full amount of lands pledged to it, is not entitled to all the granted lands in the conflicting limits?
Each grant stands full and complete — no reservation is made as to either — if one fails how should that defeat one-half of the other which is fulfilled? But in case of indemnity lands the case is still stronger for the complying company. And thd controversy here relates wholly to such lands.
The letters of the commissioner of the general land office of March 19, 1867, and of April 30, 1867, (Exhibits C and B,) seem to treat the withdrawal of March 16, 1863, (Exhibit A,) as of no moment, since it permits entries by settlers of lands within the ten-mile limits of the “probable” routes of these roads, but which now only fall within the indemnity limits.
The claim of counsel on the other side, that because of the withdrawal of March 16, 1863, the lands within ten miles of that “probable” line of road were “reserved” from all future use or application to either the Neosho branch or the Missouri, Kansas & Texas grant of July 26, 1866, goes further; for if it was an effectual withdrawal, then these lands were reserved from the indemnity uses for the Galveston road, for the “definite location of the line of this road,” was at least eight miles west of this “probable” line. That is to say, the withdrawal of these lands as granted lands before the grant had been accepted by the state or assigned to this company, and before its route was “ definitely fixed,” operated to defeat the grant itself as to the indemnity therein given. Such a conclusion is hardly worth debate. It is manifest that a reservation to fulfill a grant cannot be held to be a destruction of the grant.
4. The Missouri, Kansas & Texas company could claim these lands as indemnity under its grant of July 26, 1866. Conceding that they were withdrawn for the Galveston road under the withdrawal of , March 16, 1863, yet the right of the Missouri, Kansas & Texas company to indemnity lands only attached under the grant of July 26, 1866,. when specially selected for that purpose, and their condition then determined whether they could be taken. (Ryan v. Rid. Co. 99 U. S. 382; A. T. & 8. F. Rid. v. Rookwood, 25 Kas. 292.)
Now if these lands were, at the time they were selected for indemnity purposes by the Missouri, Kansas & Texas company, free from any-claim on the part of the Galveston company, then they were open to be selected for indemnity purposes under the act of July 26, 1866. The record shows that the Galveston company, for whom the defendant supposed they were reserved at the time of their selection, relinquished all right or interest in them, and consented that they should go to the Missouri, Kansas & Texas company. This alone brings them within the purview of the above-cited cases. The moment the Galveston company made its renunciation of the lands, that instant they were no longer reserved for it, since it was the beneficiary entitled to them aside from the Missouri, Kansas & Texas company.
5. But the legislation of the times showed it was desired by the state of Kansas to endow with a land grant a road from Junction City or Fort Riley, down the Neosho river. .The closing part of section 3 of the act of the legislature accepting this grant of 1863, clearly looks toward this project. The consent of the state to the transfer of these lands, granted by the act of 1863 to the state of Kansas from the Atchison, Topeka & Santa IJ'é company to the Missouri, Kansas & Texas company, goes in the same direction. Hence it is manifest the Missouri, Kansas & Texas company became the owner of these lands by virtue of both acts of congress. When the withdrawal of April 3, 1867, (Exhibit C,) took place, it was in fact what was due the company under both acts. For if the court chooses to give any effect to the withdrawal of March 16, 1863, it must hold that it inured by assignment to the benefit of the Missouri, Kansas & Texas company as well as of the Galveston company. When the “probable” line of the Missouri, Kansas & Texas company became definite and fixed by the filing in 1867, of the “line of route” of its road, it surely lost nothing by virtue of the former withdrawal, but could and would hold the benefit of the grant of 1863, as well as what it might gain under the act of July 26, 1866. In other words, congress made two grants of the same lands, which by assignment vested in the same company. The other side seems to claim that these grants in some way nullify each other, and that although the terms of both grants were complied with, the company took nothing by so doing!
This court, in A. T. & 8. F. v. Roekwood, p. 299, questions this withdrawal of the indemnity lands under the act of congress of July 26, 1866, since the three conditions mentioned at page 298 did not then concur. But as to the lands now in controversy, the withdrawal could take effect under the act of .congress, March 3, 1863, since as to the odd sections in the indemnity limits the company was entitled to them.
The mere misrecital of his authority by the'secretary of the interior *in his certificate to the state, does not prejudice his action. It was .not necessary he should state which act of congress he acted under, so long as what he did was authorized by law; neither does a like error in the patent of the state vitiate the conveyance. (Smith v. County of Clark, 54 Mo. 58-71; Crane v. Morris, 6 Pet. 598-670.)
The foregoing argument shows that the withdrawal was justified under the act of 1863. Neither road obtained any right over the other by prior location of line of road. This withdrawal, then, was “effectuating and was subservient” to the former withdrawal in favor of its grantors, the state of Kansas, and the Atchison, Topeka & Santa Fé company.
6. In any case the plaintiff must have judgment under the authority of Sehulenberg v. Iiarriman. These lands were vested in the state by the grants of the two acts of congress commented on. They are still there, so far as congress is concerned. The act of July 24, 1876, of course has no reference to the lands now in controversy. It makes no allusion or reference either to the Missouri, Kansas & Texas company, or to the Neosho branch of the Atchison, Topeka & Santa Eé company, or to the grants made for building the roads of these companies. The act could well take effect as to indemnity lands outside of the overlapping limits of the several grants. The act itself seems to have been drawn with very little reference to the facts in the case as to the Galveston company, since it speaks as though that company was the direct beneficiary of congress, and received its titles by patent direct from the United States.
7. But the argument for the rights of the Missouri, Kansas & Texas company is very strong from the silence of the act.
It was a matter of record in the land department, that these lands in controversy had been certified to the state of Kansas for the benefit of the Missouri, Kansas & Texas company, and the records in Kansas, both at the state capital and in the office of the registers of deeds in the various counties, showed that the state had issued its patent for these lands to the Missouri, Kansas & Texas company» It was a matter of notice to everybody that these lands were claimed by that company, and were not claimed under its grant by the Galveston company. No one knew this better than Hon. John R. Goodin, who, counsel on the other side say, was the author and the active party in securing its passage. Yet no one then doubted the title of the Missouri, Kansas & Texas company sufficiently to question it in an act of congress, which counsel for the defendant claims was deliberately aimed at all lands forfeited by failure to build the roads aided by land grants in the Neosho valley. Surely such an obvious and purposed omission of any reference to the lands conveyed to the Missouri, Kansas & Texas company, is an unmistakable recognition and acquiescence by congress of the validity of the title conveyed.
It would even seem from the terms of the act, that had the title to these lands been conveyed by patent to the Galveston company, congress would not have interfered with it, for by implication it concedes all such conveyances to be good, and only prevents any future conveyance.
The railroad company’s claim to the land on the grant of March 3, 1863, to the Neosho valley branch of the A. T. & S. F. Rid. Co. and its subsequent assignment to the M. K, &- T. , on the grant of July 26, 1866, to the U. P. S. B. Rid. Co., is an assertion of two claims utterly inconsistent with each other; for it is certain that if reserved under the act of 1863, the act of 1866 could not operate upon the land; and it is equally certain that if it was subject to the act of 1866, it had not passed by the act of 1863. This uncertainty of the donee itself, under which of these utterly inconsistent grants it acquires title, would certainly seem to be fatal to any claim at all, under the well-settled rule that in the construction of public grants if there is doubt, nothing can be taken; as “ nothing passes by implication” and “nothing passes but what is granted in clear and explicit terms.” (Black, 380; 92 U. S. 740.)
Conceding for argument’s sake that the land in controversy could have been brought within the indemnity limits of this grant, if the road had been located or built, yet it could not, under any possible circumstances, have been brought nearer than the indemnity limits, as the land is eighteen miles east of the L. L. & G., at the nearest point, and the grant to the A. T. & S. F. branch absolutely terminated at its intersection with the L. L. & G. on the west side. Now upon what contingencies would the title to this land have passed to the A. T. & S. F. branch under the act of 1863 ? (1) The road must be completed. (2) It must be ascertained that there was a deficiency in the grant in place. (3) These lands must be selected as indemnity.
Now what are the facts? Not one foot of this branch of the A. T. & S. F. was ever constructed. It was never even definitely surveyed and located. Not only was the A. T. & S. F. branch never built or even located, but these lands never could have come within its land-grant limits, if it had been constructed, unless this branch had been built to a point within two miles of the L. L. & G. north of these lands, and had then run south, parallel with the L. L. & G. and two miles therefrom, until it passed them — and even then the lands would have been in the indemnity limits only. This is so, entirely independent of where the point of intersection might be, because the land grant to this branch terminated at its point of intersection with the L. L. & G. on its west side. The lands in controversy are eighteen miles east of the L. L. A G. and the grant of the A. T. A S. F. branch could not have extended east of the L. L. A G. at all, and especially far enough to include these lands, except upon the absurd theory that the said branch should run parallel with the L. L. A G. through the Neosho valley west of these lands, and within two miles of the L. L. & G. It is not essential to our theory'that Colony should have been the point of intersection; it is immaterial where the point of intersection should have been. Wherever the point of intersection might be, it is made mathematically certain by the 4th and 13th paragraphs of the agreed facts, that the Neosho valley branch of the A. T. A S. F. never could have approached nearer than eighteen miles of this land, because said road terminated eighteen miles west of the land. That this grant is confined to the sides, and does not extend beyond the end or terminal limits of the road, has before been clearly shown.
We insist that where, under the pretense that it will construct a railroad, a corporation obtains a grant of land from congress, conditioned that the land shall revert to the United States unless the road is built, such corporation cannot assign the land grant, and put the money into its coffers without ever building or even locating a foot of railroad.' Such an assignment passes nothing, even though the legislature does ratify it. No more can two land-grant roads enter into an agreement to prevent the competition and abridge the facilities for transportation which was the moving consideration with congress to make two grants, and by such agreement confer the two grants upon one company for building one road only.
But, distrustful of the validity of its claim under the A. T. A S. F. grant, the L. L. A G., through its one-dollar deed from the M. K. A T., sets up a claim through that company under the act of July 26, 1866. It is grossly inconsistent with the claim made under the A. T. A S. F. grant, and the question should be considered entirely independent of the latter grant. The result is, that these lands, so far as the act of 1866 is concerned, must be treated as unpatented lands, the fee to which has not passed from the United States. Hence the title claimed by the railroad is a mere equity in government lands, no fee or legal title having passed to it.
This must be so, because the governor had no power to issue patents under the'act of 1866; the patents were to be issued ■directly by the federal authorities, and no patents have been issued by the latter. The governor’s patent is no evidence of title under the act of 1866.
Upon the right of the railroad company, then, to these unpatented lands, under the act of 1866, we say, first, that the M. K. & T. has once received its full quota of lands under the act of 1866, independent of these lands in controversy. If it gets these, it will receive 27,500 acres more than were ■granted to it. Second, that the lands in controversy were not subject to the operation of the act of 1866, because they were “reserved” for the L. L. & G., which had seven years yet in which to complete its road when that act was passed. (25 Has. 297; 2 Otto, 733; 54 Iowa, 89.) If the title to these lands ever vested in the M. K. & T. by virtue of the act of 1866, it is there now, and the plaintiff can only recover upon his own title. To show title in a stranger is a good defense in ejectment. There is a hiatus in the chain of title, that is fatal to plaintiff’s right of recovery.
The case of Schulenberg v. Harriman, 21 Wall. 63, clearly has no application to the facts of the one at bar. There the ■question was with reference to the right to plead the forfeiture of a grant conceded to have been made. Here the question is not of any forfeiture, but whether any grant of the lands in ■controversy was made or intended by the act of 1866.
As to the act of 1863, the question is not whether there has been a forfeiture of the grant, but whether the grant ever attached to these lands. This act does not describe any particular lands. The lands were to be determined by the location of the road. No title to indemnity lands could vest even in the state as trustee, until the definite location of the road, (24 Kas. 673,) because until then it is impossible to distinguish or identify the lands from others.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
