Bardon v. Northern Pac Co

• Decision Date: 16 May 1892
• Citation: 145 U.S. 535,12 S.Ct. 856,36 L.Ed. 806
• Parties: BARDON v. NORTHERN PAC. R. CO
• Court: U.S. Supreme Court

145 U.S. 535

12 S.Ct. 856

36 L.Ed. 806

BARDON v. NORTHERN PAC. R. CO.

May 16, 1892.

J. B. Sanborn and Wm. F. Vilas, for appellant.

James McNaught, A. H. Garland, and H. J. May, for appellee.

Mr. Justice FIELD delivered the opinion of the court.

The plaintiff, the Northern Pacific Railroad Company, a corporation organized under the act of congress of July 2, 1864, (13 St. p. 365,) entitled 'An act granting lands to aid in the construction of a railroad and telegraph line from Lake Superior to Puget sound, on the Pacific coast, by the northern route,' and having its principal places of business in the city of New York, in the state of New York, and in the city of St. Paul, in the state of Minesota, brings this suit against Mary Bardon, a citizen of Wisconsin, to charge her as trustee of certain real property held by her in that state, and compel her to convery the same to the company.

The bill, as amended, sets forth the most important provisions of the act of congress organizing the company, and authorizing it to 'locate, construct, furnish, maintain, and enjoy a continuous railroad and telegraph line, with the appurtenances, namely, beginning at a point on Lake Superior, in the state of Minnesota or Wisconsin; thence, westerly, by the most eligible railroad route, as should be determined by your orator, within the territory of the United States, on a line north of the forty-fifth degree of latitude, to some point on Puget's sound, with a branch via the valley of the Columbia river to a point at or near Portland, in the state of Oregon;' and vesting it with the powers, privileges, and immunities necessary to carry into effect the purposes of the act.

By the third section of the act a grant of land is made to the company. The section, so far as it bears upon the questions involved, is as follows:

'Sec. 3. And be it further enacted, that there be, and hereby is, granted to the Northern Pacific Railroad Company, its successors and assigns, for the purpose of aiding in the construction of said railroad and telegraph line to the Pacific coast, and to secure the safe and speedy transportation of the mails, troops, munitions of war, and public stores, over the route of said line of railway, every alternate section of public land, not mineral, designated by odd numbers, to the amount of twenty alternate sections per mile, on each side of said railroad line as said company may adopt through the territories of the United States, and ten alternate sections of land per mile on each side of said railroad whenever it passes through any state, and whenever on the line thereof the United States have full title, not reserved, sold, granted, or other wise appropriated, and free from pre emption, or other claims or rights, at the time the line of said road is definitely fixed, and a plat thereof filed in the office of the commissioner of the general land office; and whenever, prior to said time, any of said sections or parts of sections shall have been granted, sold, reserved, occupied by homestead settlers, or pre-empted, or otherwise disposed of, other lands shall be selected by said company in lieu thereof, under the direction of the secretary of the interior, in alternate sections and designated by odd numbers, not more than ten miles beyond the limits of said alternate sections: provided, that if said route shall be found upon the line of any other railroad route to aid in the construction of which lands have been heretofore granted by the United States, as far as the routes are upon the same general line, the amount of land heretofore granted shall be deducted from the amount granted by this act: provided, further, that the railroad company receiving the previous grant of land may assign their interest to said Northern Pacific Railroad Company, or may consolidate, confederate, and associate with said company upon the terms named in the first section of this act.'

The Northern Pacific Railroad Company, under this act of incorporation, proceeded to designate the general route of its proposed road, and afterwards to have its line definitely fixed. The necessities of the case do not require us to go into a very close consideration of these matters. The admissions of counsel reduce the questions for decision within narrow limits. It is conceded that the premises in controversy lie within the place limits of the grant to the Northern Pacific Railroad Company, and that the title to them would pass to that company under the grant and the compliance of the company with its conditions, unless they are excepted from the grant by the facts admitted in the pleadings and the stipulation of parties.

Among the facts admitted are these: That on and prior to September 12, 1855, the tract of land, in relation to which this suit was brought, had been surveyed by the United States and was a part of the public domain, subject to sale by pre-emption and otherwise as then provided by law; that on that day James S. Robinson, Jr., settled upon the land, and that he was at the time a qualified pre-emptor; that on the 21st of September following he filed his declaration of settlement upon the land, under the pre-emption laws, with the register and re- ceiver at the proper land office of the United States; that he died without making final proof on the pre-emption claim or paying the government for the land; that after his death his heirs, on the 30th of July, 1857, made payment for the land, and received the receiver's receipt therefor and a certificate of purchase from the register, with the statement that, on its presentation to the commissioner of the general land office, the heirs would be entitled to receive a patent for the land; that on the 5th of August, 1865, this pre-emption entry was canceled by the commissioner of the general land office for alleged failure to furnish proof of continuous residence prior to July 30, 1857; that Robinson did not, in his life-time, pay to the government the money required under the pre-emption laws of the United States to acquire title to the land, except such fees as are paid to local officers at the time of filing a pre-emption application; and that whatever money was paid for and on account of the land, prior to 1865, was paid by the heirs of Robinson, except the fees mentioned, and whatever money was thus paid was refunded to the heirs by the government upon the cancellation of the pre-emption claim.

It is thus seen that when the grant to the Northern Pacific Railroad Company was made, on the 2d of July, 1864, the premises in controversy had been taken up on the pre-emption claim of Robinson, and that the pre-emption entry made was uncanceled; that by such pre-emption entry the land was not at the time a part of the public lands; and that no interest therein passed to that company. The grant is of alternate sections of public land, and by 'public land,' as it has been long settled, is meant such land as is open to sale or other disposition under general laws. All land, to which any claims or rights of others have attached, does not fall within the designation of 'public land.' The statute also says that whenever, prior to the definite location of the route of the road, and of course prior to the grant made, any of the lands which would otherwise fall within it have been granted, sold, reserved, occupied by homestead settlers, or pre-empted or otherwise disposed of, other lands are to be selected in lieu thereof, under the direction of the secretary of the interior. There would therefore be no question that the pre-emption entry by the heirs of Robinson, the payment of the sums due to the government having been made as the law allowed by them after his death, took the land from the operation of the subsequent grant to the Northern Pacific Railroad Company, if the pre-emption entry had not been subsequently canceled. But such cancellation had not been made when the act of congress granting land to the Northern Pacific Railroad Company was passed; it was made more than a year afterwards. As the land pre-empted then stood on the records of the land department, it was severed from the mass of the public lands, and the subsequent cancellation of the pre-emption entry did not restore it to the public domain so as to bring it under the operation of previous legislation, which applied at the time to land then public. The cancellation only brought it within the category of public land in reference to future legislation. This, as we think, has long been the settled doctrine of this court.

In Wilcox v. Jackson, 13 Pet. 498, 513, this court held that whenever a tract of land has been legally appropriated to any purpose, from that moment it becomes severed from the mass of public lands, and no subsequent law or proclamation or sale will be construed to embrace it, or to operate upon...