Grandin v. La Bar

• Court: United States State Supreme Court of North Dakota
• Citation: 57 N.W. 241,3 N.D. 446
• Parties: GRANDIN et al. v. LA BAR.
• Decision Date: 03 May 1893

3 N.D. 446
57 N.W. 241

GRANDIN et al.
v.
LA BAR.

Supreme Court of North Dakota.

May 3, 1893.

Syllabus by the Court.

1. Courts are without jurisdiction to declare the rights of parties to certain real estate while the title to such real estate remains in the United States, and a contest is pending in the interior department between one of the parties litigant and the grantor of the other to test their claims to the land. Until the title passes from the United States, exclusive jurisdiction to determine the rights of adverse claimants to such land rests in that department of government charged by law with the disposal of the public lands.

2. The grant of lands by congress to the Northern Pacific Railroad Company did not vest in said company, upon the definite location of its line, title to any lands within what is known as the “Indemnity Belt.” Nor does the selection of such lands by the company, without the approval or sanction of the secretary of the interior in some manner expressed, pass any title to the railroad company; but such selection so far segregates the land selected from the public domain that any party subsequently seeking to acquire rights therein takes the same subject to the ultimate decision of the interior department as to the legality of such selection.

Appeal from district court, Traill county; William B. McConnell, Judge.

Action by John L. Grandin and William J. Grandin against E. G. La Bar to quiet title to land, and for an injunction. Plaintiffs had judgment, and defendant appeals. Reversed.

[57 N.W. 241]

S. B. Pinney and J. B. Robinson, for appellant. Carmody & Leslie, for respondents.

BARTHOLOMEW, C. J.

This case was before this court at the October term, 1891, upon an interlocutory order, and is reported in 2 N. D. 206, 50 N. W. 151. A full summary of the pleadings is given in that case, and need not be repeated here. It will answer our purpose to state that the plaintiffs and respondents claim to be the equitable owners of a certain quarter section of land in Traill county by virtue of a purchase from the Northern Pacific Railroad Company, made and recorded in 1876. The land is in what is known as the “Indemnity Belt” of lands granted by congress to said railroad company, and no patent therefor has ever been issued by the United States. It is alleged that the defendant and appellant is in possession of said land, and is cropping the same, and sapping the land of its goodness and strength, and that appellant is entirely insolvent. A decree is asked, declaring respondents to be the equitable owners of said land, and that appellant has no right, title, or interest therein, and perpetually enjoining appellant from tilling said land, or in any manner interfering therewith. The answer denies all the allegations of ownership contained in the complaint, and sets forth that the appellant is in possession of the land under the pre-emption laws of the United States; that said land was at the time of appellant's settlement thereon, and still is, public land of the United States subject to pre-emption, and was so declared by order of the secretary of the interior, dated August 15, 1887; and it further avers that a contest was and is pending before the commissioner of the general land office, between this appellant and respondents' grantor, to determine the rights of the respective parties in this particular tract of land.

The conclusion we have reached in this case renders it unprofitable and improper for us to discuss more than a single error assigned. While the pendency of a contest before the interior department between the appellant herein and respondents' grantor to determine their rights to the land in controversy was pleaded in abatement of this action, yet the learned trial court seems to have regarded the plea as bad. No finding is made upon the question, and evidence was excluded that would have established the pendency of such contest. Whether or not such plea was bad depends upon the condition of the title. If the United States had parted with its title,-if the legal title had passed to respondents' grantor, the Northern Pacific Railroad Company,-then the interior department is without further jurisdiction in the matter, and all controversies about the title must be waged in the properly constituted courts. If, on the other hand, the legal title still remains in the general government, and has not been so entirely earned by some other party that nothing remains to be done except the mere ministerial act of issuing a patent to such party,-if any act remains to be done, or any controverted question of fact remains to be considered and passed upon, before any party is entitled to patent,-then the interior department is the tribunal constituted by law and authorized to hear and determine all questions pertaining to the rights of the respective parties to receive the patent. Steel v. Refining Co., 106 U. S. 447, 1 Sup. Ct. 389;Johnson v. Towsley, 13 Wall. 72;Moore v. Robbins, 96 U. S. 538;Marqueze v. Frisbie, 101 U. S. 473;U. S. v. Schurz, 102 U. S. 396. If respondents recover in this case, it must be upon the strenghth of their title to, or rights in, the land in controversy. Absence of all title or right in appellant will not aid them. What, then, is the nature of their title or right? It appears from the undisputed evidence in this case that in March, 1883, the land in controversy was selected by the agent of the Northern Pacific Railroad Company to indemnify said company for the loss of certain lands within the limits of their primary grant. A list of selections, and a list of lands in place lost to the company, was filed in the local land office at Fargo, and forwarded to the general land office in Washington. It is alleged and found as a fact that these selections were made under the direction of the secretary of

[57 N.W. 242]

the interior. The only evidence in the record of this fact, if it can be called evidence, is a recital in an opinion of the secretary of the interior in the case pending in that department that such was the fact. But that opinion is not final; the case is still pending on a motion for rehearing, and hence there is nothing to support the finding that the selection was made “under the directions of the secretary of the interior.” The record fails, also, to show that any action whatever was ever taken by the interior department upon the list of selections filed on March 19, 1883, and which contained the land in controversy. Upon the record as made, it appears that this land was within the belt of lands from which the respondents' grantor was authorized to select lands to indemnify it for lands lost within the limits of the original grant; that such land had been “selected” by the Northern Pacific Railroad Company, and a list containing the land filed in the land office at Fargo, and forwarded to the general land office at Washington. What right or title to this land did the railroad company obtain by reason of these facts? It is urged by the respondents that the grant to the Northern Pacific Railroad Company by the act of congress approved July 2, 1864, was a grant in quantity and in praesenti, and that, upon the filing of the map of definite location, the title became fixed in the company, not only to the lands within the original grant then remaining subject to the terms of this grant, but also to so much of the odd sections in the indemnity belt as might be required to make good to the railroad company the full quantity of 20 sections per mile on each side of its line, and that this title passed by virtue of the grant; and that, where the whole of the odd sections within the indemnity belt was required to make up the deficiency, no selection was required,-that the entire belt was withdrawn from settlement by the act of congress; and that, where all the lands within the belt were not required to make up the deficiency, a selection was necessary, not to pass title, but to designate what land was subject to settlement. This we regard as the substance, though not the language, of respondents' argument.

The portion of the granting act here involved is as follows: “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 otherwise 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. * * * That the president of the United States shall cause the lands to be surveyed for forty miles in width on both sides of the entire line of said road, after the general route shall be fixed, and as fast as may be required by the construction of said railroad; and the odd sections of land hereby granted shall not be liable to sale, or entry, or pre-emption before or...