United States v. Missouri Ry Co

• Citation: 35 L.Ed. 766,141 U.S. 358,12 S.Ct. 13
• Parties: UNITED STATES v. MISSOURI, K. & T. RY. CO. et al
• Decision Date: 19 October 1891
• Court: United States Supreme Court

141 U.S. 358

12 S.Ct. 13

35 L.Ed. 766

UNITED STATES v. MISSOURI, K. & T. RY. CO. et al.

October 19, 1891.

[Syllabus from pages 358-360 intentionally omitted] Asst. Atty. Gen. Maury and Wm. Lawrence, for the United states.

A. L. Williams, A. T. Britton, A. B. Browne, James Hagerman, and Simon Sterne, for appellees.

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

This is a suit in equity by the United States for the cancellation of certain patents for lands in Allen county, Kan., of date, respectively, November 3, 1873, March 19, 1875, August 17, 1876, and April 23, 1877, and alleged to have been issued to the Missouri, Kansas & Texas Railway Company without authority of law.

The institution of such a suit as this was recommended by the secretary of the interior in a communication addressed to the attorney general, under date of June 10, 1886. 4 Dec. Dep. Int. 573, 578; 5 Dec. Dep. Int. 280, 481. The present suit was not, however, brought until after the passage of the act of congress of March 3, 1887, requiring the immediate adjustment by the secretary of the interior, in accordance with the decisions of this court, of all unadjusted land grants made by congress to aid in the construction of railroads. 24 St. p. 556, c. 376. That act made it the duty of the attorney general to commence and prosecute suits for the cancellation of all patents, certification, or other evidence of title issued for public lands, and to restore the title to the United States in all cases of lands appearing, upon the completion of such adjustments or sooner, to have been 'erroneously certified or patented by the United States, to or for the use or benefit of any company claiming by, through, or under grant from the United States, to aid in the construction of a railroad,' if such company neglected or failed, upon demand by the secretary of the interior, to relinquish or reconvey to the United States all such lands, whether within granted or indemnity limits. Sections 1, 2. The act also provided that a bona fide settler whose homestead or pre-emption entry had been erroneously canceled on account of any railroad grant, or the withdrawal of public lands from market, should, upon application, be reinstated in all his rights, and allowed to perfect his entry, by complying with the public land laws, provided he had not located another entry in lieu of the one so erroneously canceled, or voluntarily abandoned his original entry; and if a settler did not, within a reasonable time to be fixed by the secretary of the interior, make his application to be reinstated, all such unclaimed lands were required to be disposed of under the public land laws, with priority of right to bona fide purchasers, if any; then to bona fide settlers residing thereon. Section 3.

In respect to lands, except those last mentioned, found to have been erroneously certified or patented, and to have been sold by the grantee company to citizens of the United States, or to persons who had declared their intention to become such, it was provided that 'the person or persons so purchasing in good faith, his heirs or assigns, shall be entitled to the land so purchased, upon making proof of the fact of such purchase at the proper land-office, within such time and under such rules as may be prescribed by the secretary of the interior, after the grants, respectively, shall have been adjusted; and patents of the United States shall issue therefor, and shall relate back to the date of the original certification or patenting, and the secretary of the interior, on behalf of the United States, shall demand payment from the company which has so disposed of such lands of an amount equal to the government price of similar lands;' the right of the purchaser of the lands so erroneously withdrawn, certified, or patented to recover the purchase money therefor from the grantee company, less the amount paid to the United States by such company, being saved; and no mortgage or pledge of the lands by the company to be considered as a sale for the purpose of the act. Section 4.

It was further provided that where a company had sold to citizens of the United States, or to persons who had declared their intention to become such citizens, as a part of its grant, lands no conveyed to or for its use, such lands being the numbered sections prescribed in the grant, and being coterminous with the constructed parts of the road, and where the lands so sold were excepted from the operation of the grant to the company, it should be lawful for the bona fide purchaser thereof from the company to make payment to the United States at the ordinary government price for like lands, and thereupon patents should issue therefor to him, his heirs or assigns. All lands were excepted from these provisions which at the date of such sales were in the bona fide occupation of adverse claimants under the preemption or homestead laws of the United States, and whose claims and occupation had not since been voluntarily abandoned; as to which excepted lands the said preemption and homestead claimants were permitted to perfect their proofs and entries and receive patents. These last provisions do not apply 'to lands settled upon subsequent to the first day of December, eighteen hundred and eighty-two, by persons claiming to enter the same under the settlement laws of the United States, as to which lands the parties claiming the same as aforesaid shall be entitled to prove up and enter as in other like cases.' Section 5.

Demurrers to the bill having been sustained, (37 Fed. Rep. 68,) and the suit dismissed, the United States prosecuted the present appeal.

The lands in dispute are of two classes: (1) Even-numbered sections that are within the original 10-mile or place limits of the Leavenworth, Lawrence & Ft. Gibson Railroad Company, subsequently named the Leavenworth, Lawrence & Galveston Railroad Company, and to be hereafter, in this opinion, referred to as the Leavenworth Company. Those sections are also within the indemnity limits of the Missouri, Kansas & Texas Railroad Company, originally named the Union Pacific Railroad Company, Southern Branch, and to be hereafter referred to as the Missouri-Kansas Company. (2) Even-numbered sections within the common indemnity limits of both roads.

No question is presented in this case as to the odd-numbered sections within either the place or the indemnity limits of the Leavenworth road.

In respect to each of the above classes of lands, the bill alleges that rights had attached under the homestead and pre-emption laws in favor of settlers,—some, before the passage of the act, to be presently referred to, under which the Missouri-Kansas Company claims; and others after that date, but before the selection of such lands, by the direction of the secretary of the interior, as indemnity lands for that company.

But the principal question raised by the demurrer is whether the Missouri-Kansas Company was entitled, under any circumstances whatever, to make up losses or deficiencies, occurring in its place limits, from even-numbered sections within either the place or the indemnity limits of the Leaven worth road. This question denends upon the construction of three acts of congress, passed, respectively, March 3, 1863, July 1, 1864, and July 26, 1866, granting lands to the state of Kansas to aid in the construction of these railroads.

The grant made by the act of March 3, 1863, was of every alternate section of land designated by odd numbers, for 10 sections in width on each side, in aid of the construction of the following roads, and each branch thereof: First, a railroad and telegraph from the city of Leavenworth, Kan., by the way of Lawrence and 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 brauch from Lawrence, by the valley of the Wakarusa river, to the point on the Atchison, Topeka & Santa Fe Railroad where that road intersects the Neosho river; second, a railroad from the city of Atchison, Kan., via Topeka, to the western line of that state, in the direction of Fort Union and Santa Fe, N. M., with a branch where the latter road crosses the Neosho, down said Neosho valley, to the point where the road first named (the Leavenworth road) enters the Neosho valley. In respect to each road and branches, it was provided that 'in case it shall appear that the United States have, when the lines or routes of said road and branches are definitely fixed, sold any section or any part thereof granted as aforesaid, or that the right of pre-emption or homestead settlement has attached to the same, or that the same has been reserved by the United States, for any purpose whatever, then it shall be the duty of the secretary of the interior to cause to be selected, for the purposes aforesaid, from the public lands of the United States nearest to tiers of sections above specified, so much land, in alternate sections, or parts of sections, designated by odd numbers, as shall be equal to such lands as the United States have sold, reserved, or otherwise appropriated, or to which the rights of pre-emption or homestead settlements have attached as aforesaid; which lands, thus indicated by odd numbers, and selected by direction of the secretary of the interior as aforesaid, shall be held by the state of Kansas for the use and purpose aforesaid: provided, that the land to be so selected shall, in no case, be located further than twenty miles from the lines of said road and branches: provided, further, that the lands hereby granted for and on account of said roads and branches, severally, shall be exclusively applied in the construction of the same, and for no other purpose whatever, and shall be disposed of only as the work progresses through the same, as in this act hereinafter provided.' 12 St. p. 772, c. 98, § 1.

The second section of the act provided that '...