United States v. Chicago, M. & St. P. Ry. Co.

REED, District Judge

(after stating the facts). The principal question for determination is: Were the lands described in the bill of complaint and patented to the defendant reserved, or excepted from the operation of the grant of May 12, 1864 ? That grant is of every alternate section of land designated by odd numbers within 10 sections in width on each side of the line of road of the McGregor Western Railroad Company as it shall be definitely located; and three classes of lands are excepted from its operation, viz.: (1) Those which at the time of the definite location of the road have been sold by the United States; (2) those to which the right of pre-emption or homestead settlement has then attached; and (3) those which may then have been reserved to the United States by any act of Congress, or in any other manner *888 by1 coriipetent authority for' any- other purpose whatever. The map of definite ..location óf the road' was;'filed August 30, 18G4. The specific lands, granted "were then'identified, and to them the title of the corii-pany attached as of May ,12th of that year. Under the facts as stipulated by the parties none of the lands in question had been sold by the United States, nor had the right of pre-emption or homestead settlement attached to an}r of them at the time the road was located; and they are not, therefore, within the first or second classes of the exceptions.

It is also agreed that none of them was in fact of the character of lands embraced in the swamp land grant of September 28, 1850. This was finally determined by the Commissioner of the General Land Office in 1876. That finding was not appealed from, has never been modified in any way, and is not challenged by either of the parties to this suit, but is relied upon by both as sustaining their respective contentions. The contention of the government is that, as the lands were claimed to have beeri swamp lands by the several counties prior to the time the road was located, the}^ were excepted from the operation of the grant, and that inasmuch as it was adjudged by the proper authority, after the location of the road, that they were not in fact swamp lands, they remained a part of the public domain and were, therefore, erroneously patented to the defendant. The contention of the defendant is that the lands were never selected as swamp by any competent'authority of the United States, or reserved as such by any act of Congress, and therefore passed under the grant of May 12th, and were rightly patented to it.

The finding of the Land Department that the lands were not swamp is conclusive upon that question of fact, in the absence of fraud or mistake. But, if the lists filed by the respective counties were legally sufficient to segregate the lands from the public domain, the determination by the Land Department that they were not would be the determination-of a legal question which would be subject to-review by the courts. The various grants of public lands by Congress for railroad and other purposes, and the exceptions or reservations contained in. such grants, have been the subject of frequent consideration by the Supreme Court of the United States; but in none of the cases does the precise question presented by this record, seem to have been determined. It is held by that court, however, that where lands within the limits of congressional grants similar to the one in question were at the time of the taking effect thereof covered by pre-emption or home-stéad entries' under the land laws of the United States, or had been ■granted by other acts of Congress, or reserved by other competent authority for other purposes, such lands were excluded from the operation of the grant, though the entries may have been defective or invalid, or the grantees in other grants had failed to comply with the terms thereof, so that in each case the lands reverted to the United States subsequent to the location of the railroad, and. again became a part of the public domain. But in all of these cases it appears that the .pre-emption or homestead entry or other claim had been accepted or recognized by the proper'officers of the Land Department as having' attached to the lands,-or-that-the lands were, in fact, embraced within *889 prior acts of Congress, or reserved for other purposes by other competent authority acting for or on behalf 'of the United States. Thus in Whitney v. Taylor, 158 U. S. 85 , 15 Sup. Ct. 796, 39 L. Ed. 906 , the map of definite location of a land grant railroad was filed in March, 1361, and the road completed in 1868. In May, 1857, a pre-emption claim upon the land in controversy was filed in the proper laud office and duly entered upon its hooks, which entry so remained until 1885, when it was canceled by the Laud Department. In 3888 the defendant entered the land as a homestead, subsequently commuted that entry, made final proofs, paid for the land, and received the usual government receipt therefor. The plaintiff claimed under mesne conveyance from the railroad company-. The title of the defendant prevailed, for the reason that the pre-emption claim, having been accepted by the proper local land office prior to the location of the road, had thereby attached to the land and thus excluded it from the operation of the grant to the railroad company. In the opinion it is distinctly held that to have such effect the pre-emption or oilier claim must he one that is made under the authority of the laws of the United States and accepted or recognized by the proper land office, or other authority as being- a valid one, though it may in fact have been defective or invalid. After reviewing its prior decisions, the court says: . ■

“Although these cases are none of them exactly like the one before us, yet, the principle to be deduced from them is that when, on the records of the local land office, there is an existing claim on the part of an individaul under the homestead or pre-emption law which has been recognized by the officers of the government, and has not been canceled or set aside, the tract in respect, to which that' claim is existing is excepted from the operation of a railroad land grant containing the ordinary excepting clause, and this notwithstanding such claim mar not he enforceable by the claimant, and is subject, to cancellation by the government at its own suggestion, or upon the application of other parties. * * * In this respect notice may also he taken of the rule prevailing in the Rand Department where the filing of the declaratory statement, is recognized as the assertion of a pre-emption claim which excepts a tract fro-m the scope of a railroad grant like this.”

Railroad Co. v. Whitney, 132 U. S. 357 , 10 Sup. Ct. 112, 33 L. Ed. 363 , differs from the preceding case only in the fact that the entry accepted by the local land office was a homestead, instead of a pre-emption entry. After stating the essential requisites of a valid homestead entry, and that if it is defective in either of these essentials, the local land office is justified in rejecting it, the court says:

“But if. notwithstanding these defects, the application is allowed by the land officers, and a certificate of entry is delivered to the applicant, and the entry is made of record, such entry may be afterwards canceled on account of these defects. * * * But these delects, whether they be of form or- substance, by no means render the entry a nullity. So long as it remains a subsisting entry of record, whose legality has boon passed upon by the land authorities, and their action remains unreversed, it is such an appropriation of the tract as segregates it from the public domain, and therefore precludes it from subsequent grants.”

In Newhall v. Sanger, 92 U. S. 761 , 23 L. Ed. 769 , it is held that the existance of an alleged Mexican grant of lands, the validity of which was pending at the time of the definite location of a land grant railroad before the tribunal created by Congress to determine the va *890 lidity of such grant, was sufficient to exclude lands within its boundaries from the operation of the railroad grant, such lands having been reserved by Congress from sale or other disposition pending the investigation of the Mexican grant, which was finally adjudged invalid shortly after the location of the railroad. In Leavenworth R. R. Co. v. United States, 92 U. S. 733 , 23 L. Ed. 634 , lands reserved to the Osage Indians by treaty made with them prior to a railroad grant, though not specifically reserved in said grant, were held to be-reserved from its operation by force of a proviso excepting “the lands heretofore reserved to the United States, by any act of Congress, or in any other manner by competent authority, * * * or for any other purpose whatever.” In United States v. Southern Pacific Railroad Co., 146 U. S. 570 , 13 Sup. Ct. 152, 36 L. Ed. 1091 , it is held that the filing of the map of definite locátion by the Atlantic & Pacific Company, under the act of July 27, 1866, granting lands to that company, when approved by the Secretary of the Interior, operated to withdraw the lands granted from the public lands of the United States, so that they did not pass under the subsequent grant of March 3, 1871, to the Southern Pacific Company, though the Atlantic & Pacific Company failed to comply with its grant, and it was forfeited and the lands restored to the United States 'by Congress in 1886, after the grant to-the Southern Pacific Company had taken effect.

In Railway Company v. Dunmeyer, 113 U. S. 629 , 5 Sup. Ct. 566, 28 L. Ed. 1122 , it is said:

“The reasonable purpose of the government undoubtedly is that which is expressed, namely, while we are giving liberally to the railroad company, we do not give any lands which we have already sold, or to which, according to our laws, we have permitted1 a pre-emption or homestead right to attach.”

The rule is again announced in the recent case of the Southern Pacific Company v. United States (No. 2) 200 U. S. 354 , 26 Sup. Ct. 298, 50 L. Ed. 512 .

It is thus settled that to segregate lands from the public domain, so-that they may not pass under subsequent grants by Congress, they must havfe been previously reserved or withdrawn from sale by competent authority acting for or on behalf of the United States. Were the lands in question so reserved or withdrawn as being swamp lands ? By the swamp land grant the Secretary of the Interior is charged with the duty of selecting and making lists of all lands embraced within-the grant, and causing patents to be issued therefor to the several states in which they are located, and on the issuance of such patents the title to the lands vests in the state. On November 21, 1850, the,Commissioner of the General Land Office directed the Surveyor General for Iowa to make out. a list of all the lands so granted to the state of Iowa, and in his letter said:

“Tbe only reliable data iu your possession from wliieb. these lists can be-made are the field notes of the surveyors on file in your office, and, if the authorities of the state are willing to adopt these as a basis of the lists, you will so regard them. If not, and they furnish you satisfactory evidence that any lands are of the character embraced in the grant, you will report them.”

This is an explicit direction by the Land Department to select in the first instance as swamp the lands which the field notes of the surveyors- *891 show to be of that character, and, if the state authorities are unwilling to adopt these as the basis of the selection and will furnish satisfactory evidence that any other lands are embraced in the grant, the evidence so furnished is to be reported by the Surveyor General to the Rand Department, thus making any selections that might be made by the state authorities subject to the approval of the Rand Department. It does not appear what the field notes show as to the character of the lands in question further than is to be inferred from the final determination that the lands were not, in fact, swamp.

In 1853 the state of Iowa, by act of its General Assembly, granted to the several counties of the state the swamp lands in said counties embraced in the swamp laud grant, and authorized the county courts of each of the counties to appoint competent persons to examine the lands and make due report and plats of the swamp lands therein to such court, which courts were required to transmit to the proper officers lists of the lands so selected in order to procure the proper recognition of the same on the part of the United States. Raws Iowa 1858 — 53, p. 29, c. 13. It would thus appear that the state authorities were unwilling to adopt the field notes of the surveyors as the proper basis for the selection of the swamp lands in that state, and undertook themselves to make and furnish lists of such lands. But it is plain that the lists furnished by the state authorities would be without effect to withdraw or segregate the lands therein described from the public lands of the United States, unless iliey were approved by the Secretary of the Interior, or other competent authority of the United States. Railroad Co. v. Price Co., 133 U. S. 196 -511, 512, 10 Sup. Ct. 341, 33 L. Ed. 687 ; Humbird v. Avery, 195 U. S. 180 , 507—508, 25 Sup. Ct. 123, 49 L. Ed. 286 ; Sjoli v. Dreschel, 199 U. S. 564 -569, 26 Sup. Ct. 154, 50 L. Ed. 311 . The fact that these lists were presented to the Surveyor General and transmitted to the General Rand Office by him is not important; for his authority was expressly limited by his instructions to making lists from the field notes of the surveyors, and to reporting any evidence that might be furnished by the state authorities as to the character of the lands. The Secretary of the Interior only was authorized primarily to identify what lauds were embraced within the swamp land grant. French v. Fyan, 93 U. S. 169 , 23 L. Ed. 812 ; Barden v. Northern Pacific Ry. Co., 154 U. S. 288 -320, 11 Sup. Ct. 1030, 38 L. Ed. 992 ; Rogers Locomotive Works v. American Emigrant Co., 164 U. S. 559 -574, 17 Sup. Ct. 188, 11 L. Ed. 552 . Tn the last-named case the locomotive works churned certain lands in Calhoun county, this state, under the railroad grant of 1856; and the emigrant company claimed lire same lands under conveyance from Calhoun county as swamp lands. In holding that the title passed under the railroad grant the court, among other things, said:

•'‘In French v. Fyan, 93 U. S. 169 , 23 L. Ed. 812 , this court decided that by the second section of the swamp land act the power and duty devolved upon the Secretary of the Interior as the head of the hand Department of determining what lands were of the description granted b.v that act and made his ■office ilie tribunal whose decision on that subject was to be controlling. The identification of lands as lands embraced by the swamp land act was therefore necessary before the state could claim a ¡latent, or exercise absolute control of them. * * * The emigrant company lays much stress upon that clause of *892 the railroad' act of 1856 exempting from its operation all lands previously reserved by the United States for any purpose. And upon this foundation it rests the contention that -no lands embraced by the swamp land act of 1850 could, under any circumstances, be withdrawn by the Land Department from its .operation, and certified to the state under the railroad act of 1856. This contention assumes that the lands in controversy were,'within the meaning of the act of 1850, swamp and overflowed lands. But that fact was to be determined in the first instance by the Secretary of the Interior. It belonged to him primarily to identify all lands that were to go to the state under the act of 1850. When he made such identification, then, and not before, the state was entitled to a patent..

By the act of March 3, 1857 (il Stat. 251, c. 117), it is provided:

“That the selection of swamp and overflowed lands granted to the several states by the act of September 28th, 1850, heretofore made and reported td the Commissioner of the General Land Office so far as the same shall remain vacant and unappropriated, be and are hereby confirmed, and shall be approved and patented to the several states in conformity with the provisions of the act aforesaid.”

This act is expressly limited to such selections as had theretofore been made, and is a recognition by Congress of the necessity of the approval of such selections by competent authority of the United States-before they are of any effect. No other act of Congress prior to August 30, 1864, refers to or recognizes in any manner any lists furnished by state authority, and from the stipulation of facts it appears that none of the lists filed by the respective counties in this case was ever adopted, ratified, or confirmed in any manner by the Interior or Rand - Departments of the United States. These lists were not, therefore, prior to August 30, 1864, accepted or recognized for any purpose by an))- competent authority acting for or on behalf of the United States.

But it also appears from the stipulation of facts that the Kossuth county list was filed in the General Land Office August 25, 1850, that of Palo Alto county April 3, I860, and that of Dickinson county tyas sworn to'before the county judge of that county July 23, 1860, but it does not appear when or how it reached the Land Department. On June 23, 1860, the Commissioner of the General Land Office transmitted to the Surveyor General of Iowa a letter in which, among other things, he said:

“Referring to your letter of the 15th inst., asking to be advised as to your duty in reporting swamp land selections in Iowa, and in view of the act of the 12th of March last, a copy of which was furnished you in my letter of the 21st ult., I will here set forth the principles which you are to apply to any selections now on your files and.to all others, also, which may hereafter be reported to you by agents of the state. Testimony now, after the lapse of nine years, to be available, must be explicit, resting upon the personal and exact knowledge of the localities claimed, and must relate to each quarter, quarter section, or other equivalent legal subdivision. This testimony must be made by parties .having no interest, present or prospective, direct or indirect, and must state the name of the river or water course whereby the lands are submerged and- rendered useless for arable puiposes in, their natural condition. * * * You will, as soon as your report is arranged and prepared for transmission to this office,.send simultaneously a copy thereof to the local offices of the proper land districts, with instructions to them to enter the tracts in the usual form, in their books, and withhold them from sale or other disposition, .unless otherwise especially directed by this office.”

*893 The act of March 12th, to which reference is made in this letter, fixes the time within which the selections shall be made ( 12 Stat. 3 , c. 5), and no doubt prompted the letter of the 21st ult., referred to. A form of the proofs required of the state authorities is inclosed with the letter of June 23, 1860, but the lists furnished by the respective counties wholly fail to comply with its requirements. This letter is a plain disapproval by the Commissioner of the lists of two of the counties then on file in the General Land Office, and a determination by him that other lists of like character would not be recognized. This letter is also the first direction from the Land Department to enter any selection of lands made by the state authorities upon the books of the Land Office, or to withhold them from sale or other disposition, and the stipulation of facts shows that the Surve}?or General made no further report of swamp-land selections in either of the counties, and gave no direction to any of the local land offices to withhold any of the lands in question from sale or other disposition, as required by this letter.

Such was th'e status of the lands in question on August 30, 1864, when the map of definite location of the McGregor Western Railroad was filed, and the lands within the limits of the grant to that road withdrawn from the market, and it so remained until the passage of the act of March 5, 1872, entitled, “An act for the relief of Lucas and. other counties in the state of Iowa,” wherein it is provided:

“That the Commissioner of the General Hand Office is hereby authorized and required, to receive and examine the selections of swamp lands in Lucas, Dickinson, and such other counties in the state of Iowa as formerly presented their selections to the Surveyor General of the district including that state, and allow or disallow said selections and the indemnity provided for according to the acts of Congress'in force touching the same at the time such selections were made.” 17 Stat 87, c. 39.

This is the first recognition by Congress of selections made by state authorities, and this only to the extent of requiring the Commissioner of the General Land Office to receive and examine and allow or ■ disallow them and the indemnity provided for according to the acts of Congress in force when the selections were made. Whatever the purpose of this act, it was some eight years after the rights of the .Mc-Gregor Western Railroad Company under the grant of May 12, 1864, had attached, and does not operate retrospectively to affect that grant.

In Railroad Co. v. United States, 92 U. S. 733 , 23 L. Ed. 634 , above, it is held that congressional grants of public lands are confined to those the title of which is complete in the United States; and in Newhall v. Sanger, 92 U. S. 761 , 23 L. Ed. 769 , it is said:

“The words ‘public lands’ are habitually used in our legislation to describe such as are subject to sale or other disposal under general laws.”

The title of the United States to the lands in question was complete on May 12, 1864, and at the time of the definite location of the road under the provisions of the act of that date no claims or rights of any kind to any of said lands had been previously recognized by any authority of the United States, save under said act. The lands; therefore, might have been sold by the United Slates, or the right of .preemption of homestead entry might have attached to them at any. time *894 before the definite location of the road, and the complete title thereto would have passed under such sale, or under such entries, if the}- were subsequently perfected.

Some stress is laid by counsel for the government upon an admission in paragraph 17 of the answer:

“That at the date of the definite location of the McGregor Western Railroad, nil the lands mentioned' in the complainants’ Exhibit ‘A’ [the lands in question] purported to have been selected and claimed on behalf of the state of Iowa as swamp and overflowed lands.”

But this is only an admission that the lands were “purported to have been so selected and claimed by the state authorities,” and not that they had been approved by any authority of the United States. The admission must be construed in connection with the other parts of the answer, which explicitly controvert the allegations of the bill, that these lands were excluded from the operation of the grant of May 12th.

The conclusion, therefore, is that the lands in question were not on August 30, 1864, segregated from the public domain,' and.that they passed under the grant of May 12th of that year, and were rightly patented to the defendant. This renders it unnecessary to consider the other question presented. The bill should therefore be dismissed, and it is so ordered.