ÆäÀÌÁö À̹ÌÁö
PDF
ePub

*543

application to prove his settlement and enter the land, obtained a better right to the premises, under the law then existing, than that acquired by McPherson by his subsequent state selection in 1849. His right thus initiated could not be prejudiced by the refusal of the local officers to receive his proofs upon the declaration that the land was then reserved, if, in point of fact, the reservation had then ceased. The reservation was asserted, as already mentioned, on the ground that the land was then claimed as a part of the commons of Carondelet. So soon as the claim was held to be invalid to this extent by the decision of this court in March, 1862, the heirs of Chartrand presented anew their claim to pre-emption, founded upon a settlement of their ancestor."

Within the authority of that case we think the defendant* has shown an equity prior to all claims of the railway company. He had

a right to enter the land as a homestead; he pursued the course of procedure prescribed by the statute; he made out a formal application for the entry, and tendered the requisite fees, and the application and the fees were rejected by the officer charged with the duty of receiving them, and wrongfully rejected by him. Such wrongful rejection did not operate to deprive defendant of his equitable rights, nor did he forfeit or lose those rights because, after this wrongful rejection, he followed the advice of the register, and sought in another way to acquire title to the lands. The law deals tenderly with one who, in good faith, goes upon the public lands, with a view of making a home thereon. If he does all that the statute prescribes as the condition of acquiring rights, the law protects him in those rights, and does not make their continued existence depend alone upon the question whether or no he takes an appeal from an adverse decision of the officers charged with the duty of acting upon his application.

"The policy of the federal government in favor of settlers upon public lands has been liberal. It recognizes their superior equity to become the purchasers of a limited extent of land, comprehending their improvements, over that of any other person." v. Warner, 24 How. 394, 397.

Clements

There can be no question as to the good faith of the defendant. He went upon the land with the view of making it his home. He has occupied it ever since. He did all that was in his power in the first instance to secure the land as his homestead. That he failed was not his fault; it came through the wrongful action of one of the officers of the government. We do not mean to hold that the government or its grantees are concluded by the mere fact that one of its officers has given erroneous advice. If there was nothing more in this case than that the defendant consulted the officers of the land office as to how he could best obtain title to the land; that they gave him advice which

was founded upon a mistake of fact, and was not good advice; that he pursued the plan they suggested, and yet failed to ac quire the title,-he would have to bear the* consequences of the error. But here a rightful application was wrongfully rejected. This was not a matter of advice, but of decision. Doubtless the error could have been corrected by an appeal, and perhaps that would have been the better way; but when, instead of pursuing that remedy, he is per suaded by the local land officer that he can accomplish that which he desires in another way, a way that to him seems simpler and easier, it would be putting too much of rigor and technicality into a remedial and beneficial statute like the homestead law to hold that the equitable rights which he had acquired by his application were absolutely lost.

For these reasons we are of opinion that there was error in the conclusion of the supreme court of the state of Kansas, and the judgments in these two cases are reversed for further proceedings in accordance with the views herein expressed.

Mr. Justice GRAY was not present at the argument, and took no part in the decision of these cases.

(156 U. S. 574)

CORINNE MILL, CANAL & STOCK CO. v.
JOHNSON.
(March 4, 1895.)
No. 216.

RAILROAD GRANTS-LAND INCLUDED -EJECTMENT

-EVIDENCE-RECORD.

1. Plaintiff, claiming under a grant to a railroad of all odd-numbered sections within certain limits, subject to certain conditions and exceptions, must prove, not only compliance with the conditions, and that the tract is within such odd-numbered sections, but that it is not within the exceptions. 26 Pac. 922, affirmed.

2. A judgment for defendant cannot be reversed, as against evidence, where the burden was on plaintiff to prove that the land sued for was not within certain exceptions of a grant, and the record, though not purporting to contain all the evidence, fails to show that such proof was made.

In Error to the Supreme Court of the Territory of Utah.

This was an action brought by the plaintiff in error (plaintiff below) in the district court of the First judicial district of Utah, to recover possession of certain real estate. A trial before the court and a jury resulted in a verdict and judgment for defendant, which judgment was, on appeal, affirmed by the supreme court of the territory. 7 Utah, 327, 26 Pac. 922.

The contention of plaintiff was that the lands were within the grant made by the acts of congress of July 1, 1862 (12 Stat. 489), * and July 2, 1864 (13 Stat. 356), to aid in the construction of a railroad from the Missouri river to the Pacific Ocean, and that, by virtue

#576

of the admitted completion of the road, the title to them had passed to the Central Pacific Railroad Company, under whom it claimed. The statement on motion for a new trial and appeal, signed by the trial judge, which is substantially the equivalent of a bill of exceptions, does not contain any patent from the government for the lands, nor does it purport to contain all the testimony offered on the trial. The trial court, in its instructions to the jury, expressed the opinion that the plaintiff had failed to prove any title, but, while expressing such opinion, submitted to them the question of the statute of limitations. The views of the supreme court of the territory are summed up in these two paragraphs:

"In this case, no evidence having been offered that the railroad ever obtained a patent for the lands in dispute, nor that it filed its map showing its line as definitely located within the time provided by the law, nor any proof as to the time when said railroad was completed, nor that the lands were not within any of the exceptions or reservations provided in the statute, we think plaintiff failed to show its title, and that there was no error in the instruction given by the court to the jury.

"The trial court submitted to the jury the issue of the statute of limitations raised in defendant's answer, and this is assigned as error, upon the ground that there was no evidence tending to support this issue. We have examined the evidence contained in the record, and while it does not purport to contain all the evidence in the case, yet, from the evidence set out in the printed transcript, we think no error was committed in this respect, and the judgment of the district court is affirmed."

John A. Marshall, C. W. Bennett, and Jeremiah M. Wilson, for plaintiff in error. O. B. Hallam, for defendant in error.

*Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion of the court.

The grant to the railroad company was not of all the odd-numbered sections within 20 miles of its line of definite location, but of those sections subject to certain exceptions. Proof that the road had been located and completed, and that the tracts claimed were odd-numbered sections within the 20-mile limit, was not sufficient to establish title in the company. The evidence must go further, and the burden was on the plaintiff to show that they were not of the lands excepted. Land-Grant Co. v. Dawson, 151 U. S. 586, 14 Sup. Ct. 458.

Now, the defect in this record which is fatal to the case of the plaintiff in error is that nowhere is it shown that all the testimony received on the trial is preserved. Under such circumstances, we are not at liberty to assume that there was in evidence a

patent, or other instrument, of itself working a transfer of the legal title from the govern. ment to the railroad company, or evidence of any character removing all doubt as to the matter of exceptions, nor, on the other hand, that there was not testimony which conclusively established the existence of some one or more of those exceptions.

Take for illustration the question whether these were mineral lands. The grant, in terms, excepted such lands from its operation. There was no evidence of any adjudication by the land department, either through the issue of a patent or otherwise, that they were nonmineral lands. Barden v. Railroad Co., 154 U. S. 288, 14 Sup. Ct. 1030. While there was, on the part of the plaintiff, some testimony, of a general character, tending to show that the lands were grazing lands, and that no mineral had ever been discovered in them, yet, for aught that appears, there may have been overwhelming evidence that mines had in fact been opened and worked in them, or that there had been an express adjudication by the land department that they were mineral lands, and excepted from the grant. And so of other exceptions.

The presumptions are all in favor of the? rulings of the trial court. And, before it can be adjudged that it erred in instructing that the plaintiff had failed in its proof of title, the record must affirmatively show that the title was in fact proved; and that, as we have seen, includes proof that the lands were not within the exceptions named in the statute.

The supreme court of the territory, whose judgment we are reviewing, did not err in refusing, upon such a record, to disturb the decision of the trial court that the plaintiff had not established its title to the land. The judgment is therefore affirmed.

PUBLIC LANDS

WOOD v. BEACH. (March 4, 1895.)

No. 143.

(156 U. S. 548)

WITHDRAWAL FROM SALE AND

[ocr errors]

ENTRY-HOW MADE - SUBSEQUENT OCCUPA-
TION WITH INTENT TO ENTER-EFFECT.

1. Withdrawal of public lands granted to railroad companies from sale, pre-emption, and homestead entries may be made by the interior department, either as executive acts or pursuant to command of congress, and need not be made by proclamation of the president.

2. Where a person goes on land, with intent to enter it as a homestead, with knowl edge that it has been withdrawn from sale, pre-emption, and homestead entries, he acquires no equitable rights by his settlement and subsequent occupation.

In Error to the Supreme Court of the State of Kansas.

This case resembles those immediately preceding, in that the plaintiff, now defendant

1 Ard v. Brandon, 15 Sup. Ct. 406; Corinne, M., C. & S. Co. v. Johnson, 15 Sup. Ct. 409.

*577

in error, claiming title to a certain tract by deed from the Missouri, Kansas & Texas Railway Company, brought his action in the district court of Allen county, Kan., to recover possession of the land. Judgment was rendered in his favor in that court, which judgment was affirmed by the supreme court of the state (23 Pac. 649), and from that court the case has been brought here on a writ of

error.

Wm. Lawrence, for plaintiff in error. A. T. Bullen, A. B. Browne, and Geo. R. Peck, for defendant in error.

and, as we held in Riley v. Wells [unreport ed], was sufficient to defeat a settlement for the purpose of pre-emption while the order was in force, notwithstanding it was afterwards found that the law by reason of which this action was taken did not contemplate such a withdrawal."

This has been and is the settled rule of the courts and the land department. It is only a recognition of the limitations prescribed in the statutes, for, by Revised Statutes (section 2258), "the lands included in any reservation by any treaty, law, or proclamation of the president, for any purpose," are expressly 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 land in controversy is in an odd-numbered section, and within the indemnity limits of the Leavenworth, Lawrence & Galveston Railroad, and also within the like limits of the Missouri, Kansas & Texas Railway. The tract was selected, certified to the state, and by it patented to the railway company. The selection was made on August 8, 1872, and approved April 10, 1873, and the deed from the state was made on May 9, 1873. Within the decision in Kansas City, L. & S. K. R. Co. v. Attorney General, 118 U. S. 682, 7 Sup. Ct. 66, the legal title passed to the railway company. Mary E. Wood, the defendant, is the widow of C. B. Wood, who during his lifetime moved upon the land with his family, and sought to enter it as a homestead. But his occupation and settle ment, as appears from the agreed statement of facts, commenced on June 8, 1870, and. while this was prior to the selection by the railroad companies, the land had years before been withdrawn from sale or location, preemption, or homestead entries. Two orders of withdrawal were made by the department of the interior,-one on March 19, 1867, for the benefit of the Leavenworth, Lawrence & Galveston Railroad Company, and the other on April 30, 1867, for the Missouri, Kansas & Texas Railway Company. These orders of withdrawal were received at the local land office on April 3, 1867, and May 10, 1867, respectively. When Mr. Wood made application to file upon the land, he was informed that the land had been withdrawn, and his application was rejected. If those withdrawals were valid, no rights, legal or equitable, were acquired by his occupation and settlement.

It was said in Wolsey v. Chapman, 101 U. S. 755, 768: "The proper executive department of the government had determined that, because of doubts about the extent and *operation of that act, nothing should be done to impair the rights of the state above the Raccoon Fork until the differences were settled, either by congress or judicial decision. For that purpose an authoritative order was issued, directing the local land officers to withhold all the disputed lands from sale. This withdrew the lands from private entry,

the right to enter for a homestead, limits that right to "unappropriated public lands." The fact that the withdrawals were made by order of the interior department, and not by proclamation of the president, is immaterial. "A proclamation by the president reserving lands from sale is his official public announcement of an order to that effect. No particular form of such an announcement is necessary. It is sufficient if it has such publicity as accomplishes the end to be attained. If the president himself had signed the order in this case, and sent it to the registers and receivers who were to act under it, as notice to them of what they were to do in respect to the sales of the public lands, we cannot doubt that the lands would have been reserved by proclamation within the meaning of the statute. Such being the case, it follows necessarily from the decision in Wilcox v. Jackson [13 Pet. 498], that such an order sent out from the appropriate executive department in the regular course of business is the legal equivalent of the president's own order to the same effect. It was, therefore, as we think, such a proclamation by the president, reserving the lands from sale, as was contemplated by the act." Wolsey v. Chapman, 101 U. S. 755, 770.

These withdrawals were not merely execu-, tive acts. but the latter one, at least, was in obedience to the direct command of congress. Section 4 of the act granting lands to aid in the construction of what is now known as the Missouri, Kansas & Texas Railway (14 Stat. 290) is as follows:

"Sec. 4. And be it further enacted, that as soon as said company shall file with the secretary of the interior maps of its line, designating the route thereof, it shall be the duty of said secretary to withdraw from the market the lands granted by this act in such manner as may be best calculated to effect the purposes of this act and subserve the public interest."

The map of the line of definite location called for by this section was filed on December 6, 1866, and the withdrawal followed In the succeeding spring.

Upon these admitted facts, it is clear that Mr. Wood acquired no equitable rights by his occupation and settlement. He went up.

.388

on lands which were not open to homestead or pre-emption entry, and cannot make his unauthorized occupation the foundation of an equitable title. He was not acting in ignorance, but was fully informed both as to the fact and the law. He deliberately took the chances of the railway company's grant being satisfied out of lands within the place limits, or by selections of lands within the indemnity limits other than this, and trusted that in such event this tract would be restored to the public domain, and he gain some advantage by reason of being already on the land. But the event he hoped for never happened. The party for whose bene fit the withdrawal was made complied with all the conditions of title, and took the land. The judgment of the supreme court of the state was correct, and it is affirmed.

Mr. Justice GRAY was not present at the argument, and took no part in the decision of this case.

(156 U. S. 387)

HAYS et al. v. STEIGER.
(March 4, 1895.)

PUBLIC LANDS-GRANTS-BOUNDARIES.

In an action involving the ownership of land claimed to have been pre-empted by plaintiff's ancestor, where the question is as to the location of a boundary of a grant to defendant's grantor, confirmed by decree of the federal court on appeal from the land department, and plaintiffs do not show that the land is not within the boundaries of such grant, if located and construed as claimed by them, a judgment for defendant will be affirmed.

In Error to the Supreme Court of the State of California.

Frederick Hall and J. A. Maguire, for plaintiffs in error.

Mr. Justice FIELD delivered the opinion of the court.

This case comes before us on writ of error from the supreme court of California. It was an action originally brought by the plaintiff in the superior court of one of the counties of that state, claiming an equitable right to 110.80 acres of land, which is part of 160 acres of public land, for which a preemption claim was filed by one John Mann, through whom the plaintiffs in error claim as heirs at law; charging the defendant as trustee of the legal title, and praying that he be compelled to transfer it to them, as the true owners thereof.

The defendant demurred to the complaint, and had judgment thereon. The plaintiffs stood upon the sufficiency of their complaint, and appealed from the judgment of the inferior court, which was, however, affirmed. 18 Pac. 670.

From the latter judgment the case is brought to this court on a writ of error.

Mann, through whom the plaintiffs in error claim, as heirs, was a qualified preemptor on 160 acres of unsurveyed public

land in Sonoma county, Cal., which embraced the 110.80 acres in controversy here. He made improvements upon the land, and resided upon it until his death, which took place in July, 1872. He died intestate.

The township in which the 160 acres were situated was afterwards surveyed, and an approved plat thereof was filed in the United States land office in San Francisco in August, 1880.

In October, following, one of the plaintiffs, on behalf of the heirs of Mann, filed with the register and receiver of the land office a de claratory statement, claiming the right to pre-empt, for the benefit and use of the heirs, 160 acres of land.

In November, 1880, the defendant in error filed in the land office an application claiming, as a homestead, a certain portion of the land, which included the 110.80 acres. The defendant had entered upon the land in dispute in 1870, without the consent of Mann or the plaintiffs.

No entry of any kind was made by the defendant, prior to 1870, upon the premises. He claimed the right to purchase the land under the provisions of section 7 of the act of congress of July 23, 1866, entitled "An act to quiet land titles in California." The object of that section was to withdraw from the general operation of the pre-emption laws lands continuously possessed and improved by a purchaser under a Mexican grant,, which was subsequently rejected, or limited to a less quantity than that embraced in the boundaries designated, and to give to him, to the exclusion of all other claimants, the right to obtain the title. The land applied for by both parties, to the extent of 110.80 acres, was within the exterior boundary of the Mexican grant known as "Agua Caliente," but which was excluded by the final survey of the United States. The defendant was a purchaser of the land thus excluded, for a valuable consideration, from parties who purchased from the original grantee.

The record contains a description of the grant, and sets forth the various proceedings for its recognition and confirmation and survey, which we follow in the history of the proceedings, as substantially correct.

The grant was made to Lazaro Pina by Alvarado, as governor of California, in October, 1840, and was approved by the departmental assembly in October, 1845. The claim of title to grant was confirmed by the United States district court and by this court. The description of the land in the decree of confirmation is as follows:

"The land of which confirmation is made is situated in the present county of Sonoma, and is of the extent of two leagues and a half in length by a quarter of a league in width, and known by the name of 'Agua Caliente,' and is bounded on the southwest by the arroyo of the rancho of Petaluma, on the southeast by the town of Sonoma, on the north by the hills and mountains which

intervene and separate the rancho of Mr. John Wilson, being the same land which was granted to Lazaro Pina by Governor Alvarado."

The parties proved their respective claims to enter the land before the register and receiver, who decided in favor of the defendant in error.

An appeal was taken to the commissioner of the general land office from the decision of the register and receiver. That officer reversed their decision, and rendered one in favor of the plaintiffs.

A further appeal was taken to the secretary of the interior, who reversed the decision of the commissioner, and affirmed that of the register and receiver. Subsequently, a patent was regularly issued to the defendant by the United States for a tract of land embracing the 110.80 acres in dispute.

An official survey of the grant to Pina had been made in December, 1870, which was approved. By the survey adopted, the arroyo mentioned in the grant was made a fixed boundary on the westerly side.

The survey embraced 21⁄2 leagues in length, and nearly parallel to the general course of the arroyo, and 4 of a league in width on the easterly side of the arroyo. The easterly side was situated to the west of the so-called "Napa Hills." Upon the publication of the survey, objections were filed thereto by the defendant and others, claiming that the eastern boundary did not extend far enough to the east to protect them.

In February, 1878, the commissioner of the general land office decided that the grant of Agua Caliente was a grant limited in quantity, by the calls of the title papers and decree of the United States courts, to 21⁄2 leagues in length by 4 of a league in width; that the arroyo was the westerly boundary; and that the survey contained the quantity; that the eastern line was the exterior boundary, according to the calls of the grant; that, of the boundaries described in the decrees, the northern must be regarded as the eastern boundary; and that, where hills or mountains are described as the location calls of a grant, the boundary must follow the foot or base of the hills or mountains.

The commissioner approved the survey, and on appeal to the secretary of the interior the decision was affirmed.

One of the questions involved was as to the construction of the eastern boundary of the Pina grant, and whether the land in dispute was within the exterior boundaries. The grant was for a fixed quantity of land, with the arroyo for the westerly boundary, and with the southeast boundary of the town of Sonoma.

It was contended that the land was not within the exterior boundary of the grant, and that the register and receiver and secretary of the interior erred in holding that it was and awarding it to the defendant, but this contention was not sustained.

Conceding that the hills or mountains mentioned in the decree of confirmation as the northern boundary are really upon the east, and form the eastern boundary, and that where a grant is described as bounded by hills and mountains the line runs along the base, and not the summit, of the hills, it does not appear that the land in controversy was not within the boundaries of the grant, as originally made and confirmed. It was held that it might be, and that it was in fact. It follows that the defendant should have received, as his pre-emptive right, the whole of the 160 acres claimed by him, the whole amount being within the limits of the grant finally confirmed to the grantee from whom he purchased, and the judgment in his favor should be, therefore, affirmed.

And it is so ordered.

(156 U. S. 667)

NORFOLK & W. R. CO. v. PENDLETON (two cases). (March 4, 1895.)

Nos. 153 and 359.

RAILROAD CHARTER-REGULATION OF RATESRIGHTS OF SUCCESSOR.

A railroad company organized in 1848 in Virginia, and exempted by its charter from legislative control, as to tolls, until able to divide more than 15 per cent. on its capital stock, was succeeded by another company, organized in such state in 1870, under a charter giving it all the rights and franchises of the former, but providing that it should be subject to such laws as apply to railroad companies generally. Held, that the latter company and its successors were subject to the general law of Virginia of January 14, 1853, regulating tolls on railroads. 11 S. E. 1062, affirmed.

In Error to the Supreme Court of Appeals of the State of Virginia.

W. H. Bolling and Wm. J. Robertson, for plaintiff in error. John J. A. Powell, for defendant in error.

*Mr. Justice SHIRAS delivered the opinion of the court.

Edmund Pendleton brought two suits in the circuit court of Wythe county, Va., against the Norfolk & Western Railroad Company, to recover statutory penalties for charging him more than the rates prescribed by law.

On behalf of the defendant, it was not denied that the sums charged were in excess of the rates fixed by the general law of Virginia, dated January 14, 1853, regulating tolls upon railroads; but it was claimed that the defendant railroad company, as the legal successor of certain other companies, whose charters empowered them to fix their own charges, was not subject to the provisions of that statute.

899*

The trials resulted in judgments against the railroad company, which were, on error. taken to the supreme court of appeals of the state of Virginia, from whose judgments,"af-* firming those of the trial court, writs of er

« ÀÌÀü°è¼Ó »