United States v. Northern Pac Ry Co, 325

• Citation: 65 L.Ed. 825,256 U.S. 51,41 S.Ct. 439
• Decision Date: 11 April 1921
• Docket Number: No. 325,325
• Parties: UNITED STATES v. NORTHERN PAC. RY. CO
• Court: United States Supreme Court

256 U.S. 51

41 S.Ct. 439

65 L.Ed. 825

UNITED STATES

v NORTHERN PAC. RY. CO.

No. 325.

Argued Oct. 7, 1920.

Decided April 11, 1921.

[Syllabus from pages 51-52 intentionally omitted] Mr. Assistant Attorney General Nebeker, for the United States.

[Argument of Counsel from pages 52-58 intentionally omitted] Mr. Justice VAN DEVANTER delivered the opinion of the Court.

This is a suit by the United States to cancel a patent issued to the railway company for 5,681.76 acres of land in Montana, the asserted ground for such relief being that the land officers issued the patent through inadvertence and mistake. The company prevailed in the District Court and in the Circuit Court of Appeals, 264 Fed. 898, and the United States brought the case here.

The lands in question are within the indemnity limits of the land grant made to the Northern Pacific Railroad Company by the Act of July 2, 1864, c. 217, 13 Stat. 365, as modified and supplemented by the joint resolution of May 31, 1870, 16 Stat. 378, and were selected and patented as indemnity for lands lost within the place limits. The rights and obligations of the original railroad company arising out of the grant have long since passed to the present railway company and there is no need here for distinguishing one company from the other.

The grant was made for the declared purpose of 'aiding in the construction' of a proposed line of railroad from Lake Superior to Puget Sound and Portland, Or and 'to secure the safe and speedy transportation of the mails, troops, munitions of war and public stores' over such line. It was expressed in present terms—'there be, and hereby is, granted'—and was of 'every alternate section of public land, not mineral designated by odd numbers' within prescribed place limits on each side of the line excepting such sections or parts of sections as should be found to have been otherwise disposed of, appropriated or claimed, or occupied by homestead settlers, or pre-empted, prior to the definite location of the line. Nelson v. Northern Pacific Ry. Co., 188 U. S. 108, 23 Sup. Ct. 302, 47 L. Ed. 406. As indemnity for any lands so excepted, as also for any excluded as mineral, other lands were to be 'selected by said company,' under the direction of the Secretary of the Interior, from unoccupied, unappropriated, nonmineral lands in odd-numbered sections within prescribed indemnity limits. The line of the road was to be definitely located by filing a map or maps thereof in the General Land Office, and the road when constructed was to be 'subject to the use of the United States, for postal, military, naval, and all government service, and also subject to such regulations as Congress may impose restricting the charges for such government transportation.' As each consecutive 25 miles of road was constructed and made ready for the service contemplated, the same was to be examined by commissioners selected by the President, and, if they reported that the same was completed in all respects as required, patents were to be issued to the company for the lands opposite to and coterminous with the completed section. The president was to cause the lands along 'the entire line' to be surveyed for 40 miles in width on both sides 'after the general route shall be fixed, and as fast as shall be required by the construction of said road'; the granted sections within the pace limits were to be withheld from sale, entry and pre-emption, except as against pre-emption and homestead occupants whose settlement preceded the definite location of the line; all lands within the indemnity limits were to be and remain subject to the operation of the pre-emption and homestead laws, save as the odd-numbered sections should be taken out of the operation of those laws by indemnity selections made to supply losses within the place limits (Hewitt v. Schultz, 180 U. S. 139, 147-149, 155, 156, 21 Sup. Ct. 309, 45 L. Ed. 463; Weyerhaeuser v. Hoyt, 219 U. S. 380, 387, 388, 31 Sup. Ct. 300, 55 L. Ed. 258); and the price of the even-numbered sections retained by the United States in the place limits was to be increased to double the usual minimum. If the company accepted the terms on which the grant was made, it was required to signify its acceptance in writing under its corporate seal within two years.

The company duly accepted the terms of the grant, filed appropriate maps of the general route, afterwards definitely located the line in the mode prescribed, and constructed and completed the road from Ashland, Wis., on Lake Superior, to Tacoma, Wash., on Puget Sound, and thence to Portland, Or., its full length being more than 2,000 miles. The definite location was completed in 1884 and the construction in 1887. The road as completed was examined and favorably reported by the commissioners and accepted by the President. Reports of Commissioner of Railroads—for 1885, p. 22; 1886, p. 36; 1887, p. 24; 1888, p. 24; Doherty v. Northern Pacific Ry. Co., 177 U. S. 421, 20 Sup. Ct. 677, 44 L. Ed. 830; United States v. Northern Pacific R. R. Co., 95 Fed. 864, 37 C. C. A. 290; Id., 177 U. S. 435, 20 Sup. Ct. 706, 44 L. Ed. 836; United States v. Northern Pacific R. R. Co., 193 U. S. 1, 24 Sup. Ct. 330, 48 L. Ed. 593.

The losses to the grant in the place limits through other disposals, homestead settlements and the like prior to the definite location of the line, and through the exclusion of lands found to be mineral, amounted to several million acres. To supply these losses it was necessary to resort to the indemnity limits, as was contemplated and provided in the granting act and resolution. In the asserted exercise of this right the company selected the lands in question. The particular losses on account of which the selection was made were such as to support it, the selection was made in conformity with the directions given by the Secretary of the Interior, and the lands selected were subject to selection unless rendered otherwise by a temporary executive withdrawal made about a year before. The local land officers accepted and approved the selection list and in transmitting it to the General Land Office called attention to the withdrawal. But when the Commissioner and the Secretary approved the selection and caused the patent to issue they overlooked the withdrawal and so did not consider or pass on its bearing on the company's right to select the lands. Five years later the matter was called to their attention and they caused this suit to be brought.

The lands in question were not surveyed in the field until near 1905 and the plat of survey was not filed in the local land office until April 5, 1905. This indemnity selection was made later in the same day. On several occasions prior to 1904 the company had endeavored to select lands in the indemnity limits while they were as yet unsurveyed, or before the plat of the survey was filed in the local land office; but the Secretary of the Interior had refused to consider such selections and had directed that none be received until after the land was surveyed and the plat filed. Thus this selection was made as soon as was admissible under the Secretary's directions. The temporary executive withdrawal of the lands was made January 29, 1904, before they were surveyed, and was intended to prevent the acquisition of any claim to them pending an inquiry into the desirability of adding them, along with other lands, to an existing forest reserve. On March 7, 1906, they were added to the reserve by an executive proclamation.

In its defense to the suit the company takes the position that the temporary withdrawal did not affect its right to select the lands and therefore that the United States was not prejudiced by the fact that the Commissioner and the Secretary overlooked the withdrawal when the selection was approved and the patent issued. In support of this position the company points to the stipulation on which the case was heard in the District Court wherein following a reference to the Act of March 3, 1887, c. 376, 24 Stat. 556 (Comp. St. §§ 4895-4900), directing the Secretary 'to immediately adjust' this and other railroad land grants, and to a special report of the Commissioner, made in 1906, purporting to show that the adjustment of this grant pursuant to that act had progressed to a point where it was disclosed there was a net deficiency in the grant of 4,092,472.09 acres—it is said:

'The plaintiff admits that when the withdrawal order of January 29, 1904, was issued, the lands patented to the defendant or its predecessor in interest within the primary and all indemnity limits, plus all other lands within the primary or place limits, not patented, but which passed under the grant, and also all odd-numbered sections in all indemnity limits which the defendant was entitled to select under the regulations of the Land Department did not equal the sum total of all the odd-numbered sections lying within the primary or place limits of the grant, and this condition still obtains; but the plaintiff does not admit that the correct measure of the grant is the aggregate area of all odd-numbered sections within the primary or place limits, or that any definite quantity of land was granted and guaranteed to the defendant by any of the acts of Congress making grants of land to the defendant or its predecessor or predecessors in interest.'

And in further support of its position the company contends that where, through preemption and homestead entries or other disposals, the available lands in the indemnity limits have been so far diminished that those remaining are all needed to supply losses in the place limits the government is not at liberty to reserve the remaining lands, or any of them, for its own uses and thereby to cut off the company's right to claim them as indemnity, because, as against the government, they thenceforth are appropriated to the fulfillment of its obligation under the grant, and because the company has a vested right in the...