Hewitt v. Schultz
| Decision Date | 27 May 1898 |
| Citation | 76 N.W. 230,7 N.D. 601 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Sargent County; Lauder, J.
Ejectment by Fred Hewitt against Emil Schultz and Friederika Schultz. Plaintiff had judgment, and defendants appeal.
Reversed.
Judgment of the District Court reversed, and action dismissed.
Ball Watson & Maclay, James B. Kerr, and J. B. McNamee, for appellants.
The patent issued to plaintiff is void. The land falls within the exception to section 2258, Rev. Statutes of U.S. it being included in a reservation by proclamation of the president. Where the executive officers of the government attempt to dispose of lands under the pre-emption law which are contained within the terms of the exceptions to Revised Statutes, section 2258, their acts are without jurisdiction and void. Burfenning v. C. St. P. M. & O. Ry. Co., 163 U.S. 321, 16 S. C. Rep. 1018. The officers of the land department have authority to withdraw from the operation of the general land laws of the United States lands otherwise open to acquisition under those laws. Wolcott, v. Des Moines Co., 5 Wall. 687; Wolsey v. Chapman, 101 U.S. 755; Riley v. Welles, 154 U.S. 578, and a patent issued to a pre-emptor for lands which have been so withdrawn is void. Spencer v. McDougal, 159 U.S. 62; N. P. R. R. Co. v. Musser, etc. Co., 19 S.Ct. 205. The land department have authority to withdraw indemnity lands on definite location. Thompson v. N. P. Ry Co., 83 F. 546. The legislative withdrawal under the provisions of section 6 of the act of July 2, 1864, of lands within forty miles of the line of the N. P. Railroad upon filing the map of general route, was not intended by congress to be exclusive of any authority in the land department to withdraw lands in the indemnity belt after definite location. Thompson v. Ry. Co., 83 F. 546. The opinion of the secretary of the interior (19 L. D. 89) that the preliminary withdrawal by congress shows an intention to exclude all subordinate authority is wrong and based upon a misapprehension of the purposes for which the withdrawal on general route was provided. The withdrawal on general route was ample to protect the company until the definite location of its line, when its present grant of place lands took effect and the limits of its indemnity belt became fixed. When this point was reached the function of the withdrawal on general route was fulfilled and at the same time by the terms of the grant the right of selection of indemnity arose, the direction of which was expressly committed to the secretary of the interior. Wood v. Beach, 156 U.S. 549. The Northern Pacific land grant has been considered and construed. N. P. Ry. Co. v. St. P. M. & M. R. Co., 26 F. 551; Buttz v. N. P. R. Co., 119 U.S. 55. Plaintiffs patent is voidable, if not absolutely void and the legal title is held in trust for defendants. Where through an erroneous construction of the law, the land department awards to one the patent for lands which another has initiated a prior right, the courts will correct the error and hold the patentee trustee for him who has the better right. St. P etc. R. Co. v. Winona, etc. R. Co., 112 U.S. 720; Southern Pac. R. Co. v. Wiggs, 43 F. 333; Ard v. Brandon, 156 U.S. 536; Johnson v. Towsley, 13 Wall. 72; Shepley v. Cowan, 91 U.S. 330; Moore v. Robbins, 96 U.S. 530. The railroad company selected the land before plaintiff acquired any right whatsoever, for the land was reserved when he applied to enter, and after selection made, no adverse claim could attach. Rudolph Nemitz, 7 L. D. 80; St. P. R. Co. v. Meyer, 9 L. D. 250; N. P. R. Co. v. Halvorsen, 10 L. D. 15; Lane v. St. P. R. Co., 10 L. D. 454; Flippen v. S. P. R. Co., 14 L. D. 418; Sawyer v. N. P. R. Co., 12 L. D. 450; Sage v. Swenson, 67 N.W. 544.
Pierce & Austin, for respondent.
The land in question was not granted to the railroad company by its charter, but was land within the indemnity limits named in the charter as to which the company had a contingent right of selection. "The granting act not only did, not authorize a withdrawal of lands in the indemity limits but forbade it." It was explicitly provided that the provisions of the pre-emption and homestead laws should be extended to all other lands on the line of the road when surveyed "excepting those hereby granted to said company." If lands within the indemnity limits are to be regarded as on the line of said road this declaration is prohibitory of any withdrawal for the benefit of the road. N. P. R. Co. v. Miller, 7 L. D. 100; N. P. R. Co. v. Fugelli, 10 L. D. 288; Spicer v. Ry. Co., 10 L. D. 440; Davis v. Ry. Co., 19 L. D. 87; N. P. R. Co. v. Sanders, 46 F. 250. By section 6 of the act of July 2d, 1864, (13 Stat. 365,) it is provided that when surveyed, the indemnity lands should be immediately liable to selection by the company and that the lands not previously selected should be appropriated to the first legal applicant under the pre-emption and homestead laws. The company made no selection of these lands until five months after the plat of survey thereof had been filed in the local land office. Hewitt settled upon and improved the tract involved six months before the plat of survey was filed, and he filed his declaratory statement four months before the railroad company filed its list of selections. Being prior in time, he is prior in right. Shepley v. Cowan, 91 U.S. 330; S. P. R. Co. v. Meyer, 9 L. D. 250. The person first appropriating land has the best title in equity. Taylor v. Brown, 5 Cranch. 234; Stark v. Starrs, 6 Wall. 402. It is contrary to the settled policy of congress that indemnity lands should be withdrawn from entry by actual settlers for an indefinite time. N. P. Ry. Co. v. Sanders, 46 F. 248. The charter of the company as to all public lands referred to in it gave preference to the preemptors and homestead settlers down to the time when "the line of said road was definitely fixed." Wood v. Beach, 156 U.S. 543. Upon the filing of the map fixing the line of the road, the law withdrew from settlement the granted lands situated within the original grant. Buttz v. N. P. R. Co., 119 U.S. 71. Congress intended to give to actual bona fide settlers priority over the railroad company. Ry. Co. v. Greenhalgh, 26 F. 568. The selection of indemnity lands passed no title to the railroad company until approved by the secretary of the interior. Grandin v. La Bar, 3 N.D. 446, 57 N.W. 243. When an official executive act remains to be done before a patent could issue the legal and equitable title remains in the United States. Wis. Cent. R. Co. v. Price Co., 133 U.S. 496; Jackson v. LaMoure Co., 1 N.D. 239; Barden v. Ry. Co., 154 U.S. 321; Ry. Co. v. Ry. Co., 112 U.S. 421.
The plaintiff has brought ejectment to recover from the grantees of the Northern Pacific Railroad Company the possession of a quarter section of land situated within the indemnity belt of the land grant of that corporation. His pre-emption settlement upon the land was made after the same had been withdrawn from entry by the acting commissioner of the general land office. Following certain rulings of the land department that the withdrawal was void, the secretary of the interior, affirming the decision of the commissioner, held that, despite such withdrawal the plaintiff's final proof should be received; and thereafter a patent was issued to him. the defendants attack the validity of this patent claiming that it is absolutely void, because the entry was made upon lands which were, on account of the withdrawal, no longer open to entry. They predicate this contention upon the proposition that the withdrawal referred to was legal, and operated to place the land in question beyond the reach of private settlement. That the patent is void if the position taken by the defendants be sound would not seem to admit of doubt. Nor is the point seriously contested by counsel for plaintiff. If the withdrawal was valid, then the land was land included within a reservation by the proclamation of the president, and was therefore not subject to entry. Rev. Statutes, U.S. 1878, section 2258. That a withdrawal by the commissioner of the land office is a withdrawal by proclamation of the president was distinctly held in Wolsey v. Chapman, 101 U.S. 755, 25 L.Ed. 915. Where the land entered is not subject to entry, the patent is void. Burfenning v. Railroad Co., 163 U.S. 321, 16 S.Ct. 1018, 41 L.Ed. 175. We are therefore brought face to face with the question--the crucial question in the case--whether, in view of the peculiar provisions of the land grant to the Northern Pacific Railroad Company, the executive branch of the government had any authority to withdraw from entry any of the lands within the indemnity belt of such grant. It is essential to an intelligent discussion of this question that we should quote two sections of this granting act,--sections 3 and 6. Section 3 declares "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, * * * 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...
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