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application to prove his settlement and en was founded upon a mistake of fact, and ter the land, obtained a better right to the was not good advice; that he pursued the premises, under the law then existing, than plan they suggested, and yet failed to ac that acquired by McPherson by his subse- quire the title,-he would have to bear the* quent state selection in 1849. His right thus consequences of the error. But here a righ:initiated could not be prejudiced by the re ful application was wrongfully rejected. fusal of the local officers to receive his This was not a matter of advice, but of deproofs upon the declaration that the land cision. Doubtless the error could have bec:D was then reserved, if, in point of fact, the corrected by an appeal, and perhaps that reservation bad then ceased. The reserva would have been the better way; but when, tion was asserted, as already mentioned, on instead of pursuing that remedy, he is per: the ground that the land was then claimed suaded by the local land officer that he cap

a part of the commons of Carondelet. accomplish that which he desires in another So soon as the claim was held to be invalid way,-a way that to bim seems simpler and to this extent by the decision of this court easier,-it would be putting too much of in March, 1862, the heirs of Chartrand pre rigor and technicality into a remedial and sented anew their claim to pre-emption, beneficial statute like the homestead law to founded upon a settlement of their ancestor." hold that the equitable rights which he had

Within the authority of that case we think acquired by his application were absolutely the defendant* has shown an equity prior to lost. all claims of the railway company. He had For these reasons we are of opinion that a right to enter the land as a homestead; he there was error in the conclusion of the su. pursued the course of procedure prescribed | preme court of the state of Kansas, and the by the statute; he made out a formal ap- judgments in these two cases are reversed plication for the entry, and tendered the for further proceedings in accordance with requisite fees, and the application and the the views herein expressed. fees were rejected by the officer charged with the duty of receiving them, and wrong. Mr. Justice GRAY was not present at the fully rejected by him. Such wrongful re argument, and took no part in the decision jection did not operate to deprive de. of these cases. fendant of his equitable rights, nor did he forfeit or lose those rights because, after this wrongful rejection, he followed the advice

(156 U. S. 574) of the register, and sought in another way to

CORINNE MILL, CANAL & STOCK CO. v. acquire title to the lands. The law deals

JOHNSON. tenderly with one who, in good faith, goes

(March 4, 1895.) upon the public lands, with a view of mak

No. 216. ing a home thereon. If he does all that RAILROAD GRANTS-LAND INCLUDED-EJECTMENT the statute prescribes as the condition of ac

- Evidence-RECORD. quiring rights, the law protects him in those

1. Plaintiff, claiming under a grant to a

railroad of all odd-numbered sections within rights, and does not make their continued

certain limits, subject to certain conditions and existence depend alone upon the question exceptions, must prove, not only compliance whether or no he takes an appeal from an

with the conditions, and that the tract is withadverse decision of the officers charged with

in such odd-numbered sections, but that it is

not within the exceptions. 26 Pac. 922, affirmthe duty of acting upon his application. ed. "The policy of the federal government in

2. A judgment for defendant cannot be refavor of settlers upon public lands has been

versed, as against evidence, where the burden liberal. It recognizes their superior equity

was on plaintiff to prove that the land sued for

was not within certain exceptions of a grant, to become the purchasers of a limited extent and the record, though not purporting to conof land, comprehending their improvements,

tain all the evidence, fails to show that such over that of any other person.” Clements

proof was made. F. Warner, 24 How. 394, 397.

In Error to the Supreme Court of the TerThere can be no question as to the good ritory of Utah. faith of the defendant. He went upon the This was an action brought by the plaintiff land with the view of making it his home. in error (plaintiff below) in the district court He has occupied it ever since. He did all of the First judicial district of Utah, to rethat was in his power in the first instance cover possession of certain real estate. A to secure the land as his homestead. That trial before the court and a jury resulted in he failed was not his fault; it came through a verdict and judgment for defendant, which the wrongful action of one of the officers of judgment was, on appeal, affirmed by the suthe government. We do not mean to hold preme court of the territory. 7 Utah, 327, that the government or its grantees are con 26 Pac. 922. cluded by the mere fact that one of its offi The contention of plaintiff was that the cers has given erroneous advice. If there lands were within the grant made by the was nothing more in this case than that the acts of congress of July 1, 1862 (12 Stat. 489), defendant consulted the officers of the land and July 2, 1864 (13 Stat. 356), to aid in the office as to how he could best obtain title construction of a railroad from the Missouri to the land; that they gave him advice which river to the Pacific Ocean, and that, by virtue

of the admitted completion of the road, the patent, or other instrument, of itself working title to them had passed to the Central Pacific a transfer of the legal title from the govern. Railroad Company, under whom it claimed. ment to the railroad company, or evidence The statement on motion for a new trial and of any character removing all doubt as to the appeal, signed by the trial judge, which is matter of exceptions, nor, on the other hand, substantially the equivalent of a bill of ex that there was not testimony which concluceptions, does not contain any patent from sively established the existence of some one the government for the lands, nor does it or more of those exceptions. purport to contain all the testimony offered Take for illustration the question whether on the trial. The trial court, in its instruc these were mineral lands. The grant, iD tions to the jury, expressed the opinion that terms, excepted such lands from its operathe plaintiff had failed to prove any title, tion. There was no evidence of any adjudi. but, while expressing such opinion, submit cation by the land department, either througb ted to them the question of the statute of lim the issue of a patent or otherwise, that they itations. The views of the supreme court of were nonmineral lands. Barden v. Railroad the territory are summed up in these two Co., 154 U. S. 288, 14 Sup. Ct. 1030. While paragraphs:

there was, on the part of the plaintiff, some "In this case, no evidence having been of

testimony, of a general character, tending to fered that the railroad ever obtained a patent show that the lands were grazing lands, and for the lands in dispute, nor that it filed its that no mineral had ever been discovered map showing its line as definitely located in them, yet, for aught that appears, there within the time provided by the law, nor may have been overwhelming evidence that any proof as to the time when said railroad

mines had in fact been opened and worked was completed, nor that the lands were not in them, or that there had been an express within any of the exceptions or reservations adjudication by the land department that provided in the statute, we think plaintiff they were mineral lands, and excepted from failed to show its title, and that there was the grant. And so of other exceptions. no error in the instruction given by the court *The presumptions are all in favor of the to the jury.

rulings of the trial court. And, before it "The trial court submitted to the jury the can be adjudged that it erred in instructing issue of the statute of limitations raised in that the plaintiff had failed in its proof defendant's answer, and this is assigned as of title, the record must affirmatively show error, upon the ground that there was no that the title was in fact proved; and that, evidence tending to support this issue. We as we have seen, includes proof that the have examined the evidence contained in the lands were not within the exceptions named record, and while it does not purport to con in the statute. tain all the evidence in the case, yet, from The supreme court of the territory, whose the evidence set out in the printed transcript, judgment we are reviewing, did not err in we think no error was committed in this re

refusing, upon such a record, to disturb the spect, and the judgment of the district court decision of the trial court that the plaintiff is affirmed."

had not established its title to the land. The John A. Marshall, C. W. Bennett, and

judgment is therefore affirmed. Jeremiah M. Wilson, for plaintiff in error. O. B. Hallam, for defendant in error.

(156 U. S. 548)

WOOD v. BEACH. *Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the

(March 4, 1895.) opinion of the court.

No. 143. The grant to the railroad company was not PUBLIC LANDS WITHDRAWAL FROM SALE AND of all the odd-numbered sections within 20

ENTRY-How MADE SUBSEQUENT OCCUPAmiles of its line of definite location, but of

TION WITH INTENT TO EXTER-EFFECT. those sections subject to certain exceptions.

1. Withdrawal of public lands granted to Proof that the road had been located and

railroad companies from sale, pre-emption, and

homestead entries may be made by the interior completed, and that the tracts claimed were department, either as executive acts or pur. odd-numbered sections within the 20-mile

suant to command of congress, and need not limit, was not sufficient to establish title in

be made by proclamation of the president.

2. Where a person goes on land, with inthe company. The evidence must go further, tent to enter it as a homestead, with knowl. and the burden was on the plaintiff to show edge that it has been withdrawn from sale, that they were not of the lands excepted.

pre-emption, and homestead entries, he acquires

no equitable rights by his settlement and subLand-Grant Co. v. Dawson, 151 U. S. 586, 14

sequent occupation. Sup. Ct. 458.

In Error to the Supreme Court of the State Now, the defect in this record which is

of Kansas. fatal to the case of the plaintiff in error is that nowhere is it shown that all the testi

This case resembles those immediately premony received on the trial is preserved.

ceding,1 in that the plaintiff, now defendant Under such circumstances, we are not at lib

1 Ard v. Brandon, 15 Sup. Ct. 406; Corinna, erty to assume that there was in evidence a M., C. & S. Co. v. Johnson, 15 Sup. Ct. 409.

•540

in error, claiming title to a certain tract by J and, as we held in Riley v. Wells (unreports deed from the Missouri, Kansas & Texas | ed], was suficient to defeat a settlement for Railway Company, brought his action in the the purpose of pre-emption while the order district court of Allen county, Kan., to re was in force, notwithstanding it was aftercover possession of the land. Judgment was wards found that the law by reason of which rendered in his favor in that court, which , this action was taken did not contemplate judgment was affirmed by the supreme court such a withdrawal." of the state (23 Pac. 649), and from that court This has been and is the settled rule of the the case has been brought here on a writ of courts and the land department. It is only error.

a recognition of the limitations prescribed in

the statutes, for, by Revised Statutes (secWm. Lawrence, for plaintiff in error. A. T.

tion 2238), “the lands included in any reserBullen, A. B. Browne, and Geo. R. Peck, for

vation by any treaty, law, or proclamation of defendant in error.

the president, for any purpose," are express

ly declared to be not subject to the rights of • Mr. Justice BREWER delivered the opin- | pre-emption, and section 2289, the one giving ion of the court.

the right to enter for a homestead, limits that The land in controversy is in an odd-num- right to "unappropriated public lands." The bered section, and within the indemnity lim. fact that the withdrawals were made by orits of the Leavenworth, Lawrence & Galves- der of the interior department, and not by ton Railroad, and also within the like limits proclanation of the president, is immaterial. of the Missouri, Kansas & Texas Railway. “A proclamation by the president reserving The tract was selected, certified to the state, lands from sale is his official public announceand by it patented to the railway company. ment of an order to that effect. No particuThe selection was made on August 8, 1872, lar form of such an announcement is necesand approved April 10, 1873, and the deed sary. It is sufficient if it has such publicity from the state was made on May 9, 1873. as accomplishes the end to be attained. If Within the decision in Kansas City, L. & S. the president bimself had signed the order in K. R. Co. v. Attorney General, 118 U. S. 682, this case, and sent it to the registers and re7 Sup. Ct. 66, the legal title passed to the ceivers who were to act under it, as notice railway company. Mary E. Wood, the de to them of what they were to do in respect fendant, is the widow of C. B. Wood, who to the sales of the public lands, we cannot during his lifetime moved upon the land doubt that the lands would have been rewith his family, and sought to enter it as a served by proclamation within the meaning homestead. But his occupation and settle of the statute. Such being the case, it folment, as appears from the agreed statement lows necessarily from the decision in Wilcox of facts, commenced on June 8, 1870, and, V. Jackson (13 Pet. 498), that such an order while this was prior to the selection by the sent out from the appropriate executive de. railroad companies, the land had years before partment in the regular course of business is been withdrawn from sale or location, pre the legal equivalent of the president's own .emption, or homestead entries. Two orders order to the same effect. It was, therefore, of withdrawal were made by the department as we think, such a proclamation by the of the interior,-one on March 19, 1867, for president, reserving the lands from sale, as the benefit of the Leavenworth, Lawrence & was contemplated by the act." Wolsey v. Galveston Railroad Company, and the other Chapman, 101 U. S. 755, 770. on April 30, 1867, for the Missouri, Kansas & These withdrawals were not merely execuTexas Railway Company. These orders of tive acts. but the latter one, at least, was in withdrawal were received at the local land obedience to the direct command of congress. office on April 3, 1867, and May 10, 1867, re Section 4 of the act granting lands to aid in spectively. When Mr. Woud made applica- | the construction of what is now known as tion to file upon the land, he was informed the Missouri, Kansas & Texas Railway (14 that the land had been withdrawn, and his Stat. 290) is as follows: application was rejected. If those withdraw "Soc. 4. And be it further enacted, that as als were valid, no rights, legal or equitable, soon as said company shall file with the secwere acquired by his occupation and settle retary of the interior maps of its line, desig. ment.

nating the route thereof, it shall be the duty It was said in Wolsey v. Chapman, 101 U. of said secretary to withdraw from the marS. 755, 768: “The proper executive depart. ket the lands granted by this act in such ment of the government had determined that, manner as may be best calculated to effect because of doubts about the extent and op the purposes of this act and subserve the eration of that act, nothing should be done public interest." to impair the rights of the state above the The map of the line of definite location Raccoon Fork until the differences were set called for by this section was filed on Detled, either by congress or judicial decision. cember 6, 1866, and the withdrawal followed For that purpose an authoritative order was in the succeeding spring. issued, directing the local land officers to Upon these admitted facts, it is clear that withhold all the disputed lands from sale. Mr. Wood acquired no equitable rights by This withdrew the lands from private entry, | his occupation and settlement. He went up.

650

on lands which were not open to homestead | land in Sonoma county, Cal., which em or pre-emption entry, and cannot make bis braced the 110.80 acres in controversy bere. unauthorized occupation the foundation of He made improvements upon the land, and an equitable title. He was not acting in igo resided upon it until his death, which took norance, but was fully informed both as to place in July, 1872. He died intestate. the fact and the law. He deliberately took The township in which the 100 acres were the chances of the railway company's grant situated was afterwards surveyed, and ad being satisfied out of lands within the place approved plat thereof was filed in the United limits, or by selections of lands within the States land office in San Francisco in August, indemnity limits other than this, and trusted 1880. that in such event this tract would be re In October, following, one of the plaintiffs, stored to the public domain, and he gain on behalf of the heirs of Mann, filed with tbe some advantage by reason of being already register and receiver of the land office a de on the land. But the event he hoped for claratory statement, claiming the right to never happened. The party for whose bene pre-empt, for the benefit and use of the heirs, fit the withdrawal was made complied with 160 acres of land. all the conditions of title, and took the land. In November, 1880, the defendant in error

The judgment of the supreme court of the filed in the land office an application claim. state was correct, and it is affirmed.

ing, as a homestead, a certain portion of the

land, which included the 110.80 acres. The Mr. Justice GRAY was not present at the defendant had entered upon the land in disargument, and took no part in the decision of pute in 1870, without the consent of Mann this case.

or the plaintiffs.

No entry of any kind was made by the (156 U. S. 387)

defendant, prior to 1870, upon the premises. HAYS et al. Y, STEIGER.

He claimed the right to purchase the land

under the provisions of section 7 of the act (March 4, 1895.)

of congress of July 23, 1866, entitled "An act PUBLIC LANDS-GRANTS-BOUNDARIES.

to quiet land titles in California." The obIn an action involving the ownership of land claimed to have been pre-empted by plain-ject of that section was to withdraw from tiff's ancestor, where the question is as to the

the general operation of the pre-emption laws location of a boundary of a grant to defendant's lands continuously possessed and improved grantor, confirmed by decree of the federal court by a purchaser under a Mexican grant, on appeal from the land department, and plaintiffs do not show that the land is not within

which was subsequently rejected, or limited the boundaries of such grant, if located and to a less quantity than that embraced in the* construed as claimed by them, a judgment for boundaries designated, and to give to him, defendant will be affirmed.

to the exclusion of all other claimants, the In Error to the Supreme Court of the State right to obtain the title. The land applied of California.

for by both parties, to the extent of 110.50 Frederick Hall and J. A. Maguire, for plain- acres, was within the exterior boundary of tiffs in error.

the Mexican grant known as "Agua Calien.

te," but which was excluded by the final surMr. Justice FIELD delivered the opinion vey of the United States. The defendant of the court.

was a purchaser of the land thus excluded, This case comes before us on writ of error for a valuable consideration, from parties from the supreme court of California. It who purchased from the original grantee. was an action originally brought by the The record contains a description of the plaintiff in the superior court of one of the grant, and sets forth the various proceedings counties of that state, claiming an equitable for its recognition and confirmation and surright to 110.80 acres of land, which is part vey, which we follow in the history of the of 100 acres of public land, for which a pre- proceedings, as substantially correct. emption claim was filed by one John Mann, The grant was made to Lazaro Pipa by through whom the plaintiffs in error claim Alvarado, as governor of California, in Octoas heirs at law; charging the defendant as ber, 1840, and was approved by the departtrustee of the legal title, and praying that he mental assembly in October, 1815. The be compelled to transfer it to them, as the claim of title to grant was confirmed by the true owners thereof.

United States district court and by this court. The defendant demurred to the complaint, The description of the land in the decree of and had judgment thereon. The plaintiffs contirmation is as follows: stood upon the sufficiency of their complaint, “The land of which confirmation is made and appealed from the judgment of the in is situated in the present county of Sonoma, ferior court, which was, however, affirmed. and is of the extent of two leagues and a 18 Pac. 670.

half in length by a quarter of a league in From the latter judgment the case is width, and known by the name of 'Agua brought to this court on a writ of error. Caliente,' and is bounded on the southwest

Mann, through whom the plaintiffs in er by the arroyo of the rancho of Petaluma, ror claim, as heirs, was a qualified pre on the southeast by the town of Sonoma, on emptor on 160 acres of unsurveyed public the north by the bills and mountains which

*388

Intervene and separate the rancho of Mr. Conceding that the hills or mountains menJohn Wilson, being the same land which was tioned in the decree of confirmation as the granted to Lazaro Pina by Governor Alvara northern boundary are really upon the east, do."

and form the eastern boundary, and that The parties proved their respective claims where a grant is described as bounded by to enter the land before the register and re hills and mountains the line runs along the ceiver, who decided in favor of the defend base, and not the summit, of the bills, it does ant in error.

not appear that the land in controversy was An appeal was taken to the commissioner not within the boundaries of the grant, as of the general land office from the decision originally made and confirmed. It was held of the register and receiver. That officer re that it might be, and that it was in fact. It versed their decision, and rendered one in follows that the defendant should have refavor of the plaintiffs.

ceived, as his pre-emptive right, the whole of A further appeal was taken to the secre the 160 acres claimed by him, the whole tary of the interior, who reversed the deci. amount being within the limits of the grant sion of the commissioner, and affirmed that finally confirmed to the grantee from whom of the register and receiver. Subsequently, he purchased, and the judgment in his favor a patent was regularly issued to the defend should be, therefore, attirmed. ant by the United States for a tract of land And it is so ordered. embracing the 110.80 acres in dispute.

An official survey of the grant to Pina had been made in December, 1870, which

(156 U. S. 667) was approved. By the survey adopted, the NORFOLK & W. R. CO. V. PENDLETON arroyo mentioned in the grant was made a

(two cases). fixed boundary on the westerly side.

(March 4, 1895.) The survey embraced 21 leagues in length,

Nos. 153 and 339. and nearly parallel to the general course of

RAILROAD CHARTER-REGULATION OF RATBS the arroyo, and 14 of a league in width on

RIGHTS OF SUCCESSOR. the easterly side of the arroyo. The easterly

A railroad company organized in 1848 in side was situated to the west of the so-called Virginia, and exempted by its charter from legis“Napa Hills." Upon the publication of the

lative control, as to tolls, until able to divide

more than 15 per cent. on its capital stock, was survey, objections were filed thereto by the succeeded by another company, organized in defendant and others, claiming that the east such state in 1870, under a charter giving it all ern boundary did not extend far enough to

the rights and franchises of the former, but

providing that it should be subject to such the east to protect them.

laws as apply to railroad companies generally. In February, 1878, the commissioner of the Held, that the latter company and its successors general land office decided that the grant of

were subject to the general law of Virginia of

January 14, 1853, regulating tolls on railroads. Agua Caliente was a grant limited in quan.

11 S. E. 1062, affirmed. tity, by the calls of the title papers and de cree of the United States courts, to 242

In Error to the Supreme Court of Appeals leagues in length by 14 of a league in width;

of the State of Virginia. that the arroyo was the westerly boundary; W. H. Bolling and Wm. J. Robertson, for and that the survey contained the quantity; plaintiff in error. John J. A. Powell, for dethat the eastern line was the exterior bound fendant in error. ary, according to the calls of the grant; that, of the boundaries described in the decrees, *Mr. Justice SHIRAS delivered the opinioni the northern must be regarded as the eastern of the court. boundary; and that, where hills or moun. Edmund Pendleton brought two suits lo tains are described as the location calls of a the circuit court of Wythe county, Va., grant, the boundary must follow the foot or against the Norfolk & Western Railroad Combase of the hills or mountains.

pany, to recover statutory penalties for charThe cominissioner approved the survey, ging him more than the rates prescribed by and on appeal to the secretary of the inte law. rior the decision was affirmed.

On behalf of the defendant, it was not de One of the questions involved was as to nied that the sums charged were in excess of the construction of the eastern boundary of the rates fixed by the general law of Virthe Pina grant, and whether the land in dis- ginia, dated January 14, 1953, regulating tolls pute was within the exterior boundaries. upon railroads; but it was claimed that the The grant was for a fixed quantity of land, defendant railroad company, as the legal sucwith the arroyo for the westerly boundary, cessor of certain other companies, whose and with the southeast boundary of the town charters empowered them to tix their own of Sonoma.

charges, was not subject to the provisions of It was contended that the land was not that statute. within the exterior boundary of the grant, The trials resulted in judgments against and that the register and receiver and secre the railroad company, which were, on error, tary of the interior erred in holding that it taken to the supreme court of appeals of the was.and awarding it to the defendant, but state of Virginia, from whose judgments, af. this contention was not sustained.

tirming those of the trial court, writs of er

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